THE  LIBRARY  OF  THE 

UNIVERSITY  OF 

NORTH  CAROLINA 


THE  COLLECTION  OF 

NORTH  CAROLINIANA 

PRESENTED  BY 

Richmond  Co.  Clerk  of  Court 


C3U7.9 
B2? 


UNIVERSITY  OF  N.C.  AT  CHAPEL  HILL 


00033977046 


This  book  must  not 
be  taken  from  the 
Library  building. 


Form  No.  471 


Digitized  by  the  Internet  Archive 

in  2010  with  funding  from 

Ensuring  Democracy  through  Digital  Access  (NC-LSTA) 


http://www.archive.org/details/codeofcivilproce1868nort 


THE    CODE 


OF 


Civil   Procedure 


OF  NORTH  CAROLINA. 


TO  SPECIAL  PROCEEDINGS. 


PREPARED    BY 

Victor  C.  Barringer,  Will:  B.  Rodman,  Albion  W.  Tourgee, 

Commissioners  of  the  Code, 

ATO  PUBLISHED  CXDEB  THEIB  ST7PEEVISIOX,    ACCOEDIXS  TO  LAW. 


~*5r- 


RALEIGH  : 
N.    PAIGE,    STATE    PRINTER. 

1868. 


PREFACE. 


In  submitting  that  portion  of  the  Code  of  Civil  Proce- 
dure which  has  been  prepared  and  adopted,  to  the  pro- 
fession and  the  people  of  the  State,  the  Commissioners, 
recognizing  and  regretting  its  deficiencies,  beg  leave  only 
to  call  attention  to  the  very  brief  time  which  has  been 
occupied  in  its  preparation  and  publication.  By  the 
conditions  imposed  by  the  Constitution  and  Act  of  Ap- 
pointment, the  Commissioners  were  compelled  to  report 
a  Code  of  Civil  Procedure  as  well  as  a  General  Analysis 
of  the  Codes  projected  by  them,  to  the  first  session  of 
the  General  Assembly.  In  addition  to  the  duties,  thus 
imposed,  they  were  requested,  by  resolution  of  one  or 
both  Houses  of  the  General  Assembly,  during  the  late 
session,  to  prepare  several  bills  upon  subjects  connected 
with  necessary  amendment  of  our  laws,  to  adapt  the  new 
machinery   of  the    State    Government  to    its  work. 

The  actual  work  of  preparation  of  the  Code  can  hardly 
be  said  to  have  commenced  until  the  inauguration  of  the 
State  Government,  July  3rd,  18G8.  Since  that  time,  the 
Commissioners  have  not  only  prepared  and  published  the 
present  volume,  but  have  prepared  and  submitted  nearly  as 
much  more,  for  the  consideration  of  the  General  Assembly. 
The  necessity  for^this  haste  no  one  regrets  more  keenly  than 
the  Commissioners,    yet  they  hope  it  will  not  be  without 


iv  PREFACE. 

good,  in  its  final  results,  as  it  will  render  possible  a  com- 
plete and  thorough  revision  and  amendment  of  the  Code 
of  Civil  Procedure,  before  the  final  publication  of  the 
Codes  projected  by  the  Commission.  It  is  hoped  that  the 
entire  Bench  and  Bar  of  the  State,  will  unite  with  the 
Commissioners  in  endeavoring  to  perfect  and  harmonize 
the  system  of  Procedure  now  introduced,  and  made  neces- 
sary by  the  Constitution,  by  forwarding  to  them  such 
amendments  as  may  occur  to  them,  in  practice  under  it,  as 
necessary  or  valuable.  Having  fulfilled  the  conditions 
of  the  Constitution  in  regard  to  the  work  which  was 
required  to  be  reported  to  the  first  session,  we  can 
assure  the  profession  that  no  pains  will  be  spared  to 
make  the  future  work  of  the  Commission  as  complete  as 
time  and  assiduous  labor  can  render  it. 

It  is  expected  that  the  volume  will  be  in  the  hands  of 
the  profession  and  the  officers  of  the  courts  by  the  first 
of  September,  or  in  less  than  ninety  days  from  the  time 
its  preparation  was  commenced. 

The  Ordinance  of  the  Convention  of  1865  and  1866,  in 
regard  to  the  jurisdiction  of  the  courts,  amended  by  the 
Convention  of  1868,  is  for  the  first  time  published  in  its 
amended  form,  in  this  volume,  for  the  convenience  of 
public  officers  and  parties  interested. 

THE   COMMISSIONERS. 

Raleigh,  August  25th,  1868. 


AUTHORIZATION. 


EXTKACTS  FEOM  THE 

CONSTITUTION  OF  NORTH  CAROLINA,  ARTICLE  IV 


Section  I.  The  distinction  between  actions  at  law  and  suits 
in  equity,  and  the  forms  of  all  such  actions  and  suits,  shall 
be  abolished ;  and  there  shall  be  in  the  State  but  one  form 
of  action  for  the  enforcement  or  protection  of  private  rights, 
or  the  redress  of  private  wrongs,  which  shall  be  denomina- 
ted a  civil  action ;  and  every  action  prosecuted  by  the  peo- 
ple of  the  State,  as  a  party  against  a  person  charged  with  a 
public  offence,  for  the  punishment  of  the  same,  shall  be 
termed  a  criminal  action.  Feigned  issues  shall  also  be  abol- 
ished, and  the  fact  at  issue  tried  by  order  of  court  before  a 

Sec.  II.  Three  Commissioners  shall  be  appointed  by  the 
Convention  to  report  to  the  General  Assembly  at  its  first 
session,  after  this  Constitution  shall  be  adopted  by  the  peo- 
ple, rules  of  practice  and  Procedure  in  accordance  with  the 
provisions  of  the  foregoing  section,  and  the  Convention  shall 
provide  for  the  Commissioners,  a  suitable  compensation. 

Sec.  III.  The  same  Commissioners  shall  also  report  to  the 
General  Assembly  of  North  Carolina  as  soon  as  practicable, 
a  Code  of  the  laws' of  North  Carolina.  The  Governor  shall 
have  power  to  fill  all  vacancies  in  this  Commission. 


Sec.  XXV.  Actions  at  law  and  suits  in  Equity,  pending 
when  this  Constitution   shall  go  into  effect  shall  be  trans- 


vi  AUTHORIZATION. 

ferred  to  the  courts  having  jurisdiction  thereof,  without 
prejudice  by  reason  of  the  change,  and  all  such  actions  and 
suits  commenced  before  and  pending  at  the  adoption  by 
the  General  Assembly,  of  the  rules  of  Practice  and  Procedure 
herein  provided  for,  shall  be  heard  and  determined  accord- 
ing to  the  practice  now  in  use,  unless  otherwise  provided 
fqr  by  said  rules. 


Ordinance  of  the  Convention  of  1868, 


APPOINTING  CODE  COMMISSIONERS. 


Atf  ORDINANCE  APPOINTING  COMMISSIONERS  TO  PREPARE  A  CODE  OF 
PRACTICE  AND  PROCEDURE  IN  THE  DIFFERENT  COURTS  OF  THE 
STATE. 

Section  1.  Be  it  ordained  by  the  people  of  North  Carolina 
in  Convention  assembled,  and  it  is  hereby  ordained  as  follows : 
That  Victor  C.  Barringer,  A.  W.  Tourgee  and  William 
K  Rodman  are  hereby  appointed  Commissioners,  whoee 
duty  it  shall  be  to  prepare  a  Code  of  Practice  and  Procedure 
in  the  different  Courts  of  the  State,  and  to  reduce  into  a 
written  and  systematic  Code,  the  whole  body  of  law  of  the 
State,  or  such  parts  thereof  as  shall  seem  to  them  practicable 
and  expedient,  and  consistent  with  the  provisions  of  the 
Constitution. 

Sec  2.  Be  it  further  ordained,  That  the  Commissioners 
shall  divide  the  Code  of  Practice  and  Procedure  into  two 
parts,  the  one  as  a  Code  of  Criminal  Procedure,  with  the 
requisite  forms,  the  other  a  Code  of  Civil  Procedure,  with 
forms  thereof. 

Sec.  3.  Be  it  further  ordained,  That  the  first  division  of 
the  Code  of  Law  must   embrace   the  laws  respecting  the 


AUTHORIZATION.  vii 

government  of  the  State,  its  civil  polity,  the  functions  of  its 
public  officers  and  duties  of  its  citizens.  The  second  must 
embrace  the  laws  of  personal  rights  and  relations  of  property 
and  obligations.  The  third  shall  define  crimes  and  pre- 
scribe their  punishments. 

Sec.  4.  Be  it  further  ordained,  That  the  Commissioners 
shall  hold  their  offices  for  three  years ;  but  the  General 
Assembly  may  continue  their  term  if  it  shall  be  deemed 
necessary. 

Sec.  5.  Be  it  further  ordained,  That  the  Commissioners 
shall  report  to  the  General  Assembly  at  its  first  session  after 
the  adoption  of  this  Constitution  a  general  analysis  of  the 
Code  projected  by  them  and  the  progress  made  by  them 
therein,  and  shall  continue  to  report  at  each  succeeding 
session  of  the  General  Assembly  the  progress  made  to  that 
time. 

Sec  G.  Be  it  further  ordained,  That  whenever  the  Com- 
missioners shall  have  prepared  the  Code,  or  any  portion  of 
the  same,  they  shall  contract  with  the  printer  of  the  State 
for  printing  of  the  same,  and  cause  the  same  to  be  distri- 
buted among  the  Justices  of  the  Supreme  Court,  Judges  of 
the  Superior  Courts,  and  other  competent  persons  for  exami- 
nation, after  which  the  Commissioners  shall  re-examine  their 
work  and  consider  such  suggestions  as  may  have  been  made 
to  them.  They  shall  then  cause  the  Code  as  finally  agreed 
upon  by  them  to  be  re-printed  under  the  contract  as  afore- 
said, and  distributed  to  all  the  Justices  of  the  Supreme  Court, 
the  Judges  of  the  Superior  Courts  and  Clerks  of  the  Superior 
Courts,  thirty  days  before  being  presented  to  the  General 
Assembly ;  and  the  Penal  Code  in  like  manner  to  be  dis- 
tributed to  the  Solicitors  of  the  State. 

Sec  7.  Be  it  further  ordained,  That  the  Commissioners 
shall  from  time  to  time  specify  such  amendments,  altera- 
tions and  revision  of  the  law  as  to  them  may  seem  necessary 
to  carry  into  effect  the  provisions  of  the  Constitution,  and 
report  the  same  to  the  General  Assembly. 

Sec  8.  Be  it  further  ordained,  That  each  of  said  Commis- 
missioners  shall  receive  a  salary  of  two  hundred  dollars  per 


viii  AUTHORIZATION. 

month,  while  actually  engaged  in  the  performance  of  his 
duties  as  such.  A  suitable  room  in  the  Capitol  shall  be 
assigned  to  said  Commissioners  as  an  office,  and  the  neces- 
sary printing  and  stationery  allowed  the  same. 

Sec.  9.  Be  it  furtJier  ordained,  That  this  ordinance  shall 
be  in  force  from  and  after  its  ratification. 

Ratified  this  13th  day  of  March,  A.  D.,  1868. 

CALVIN  J.  COWLES,  President 
T  A.  Btrxes,  Secretary. 


First  Report  of  the  Code  Commissioners. 


Office  Commissioners  of  the  Code 
Raleigh,  July  15th,  1868 


•} 


To  the  General  Assembly  of  North  Carolina  : 

The  Commissioners  appointed  by  the  Act  of  March  13th, 
1868,  to  "  prepare  a  Code  of  Practice  and  Procedure  in  the 
different  Courts  of  the  State,  and  to  reduce  into  a  written 
and  systematic  code  the  whole  body  of  the  law  of  the  State," 
and  who  are  required  by  section  5,  of  said  act  to  "  report  to 
the  General  Assembly,  at  its  first  session,  a  general  analysis 
of  the  Code  projected  by  them,  and  the  progress  made  by 
them  therein,"  beg  leave  to  submit  their  first 
t 

REPORT. 

Immediately  upon  the  ratification  of  the  Constitution,  the 
Commissieners  began  their  labors.  It  is  known  to  the 
General  Assembly  that  the  labor  imposed  upon  the  Commis- 
sion is  one  of  the  greatest  difficulty  and  responsibilty. 
Nothing  within  the  range  of  government,  can  exceed  in 
magnitude  the  task  of  collecting,  condensing  and  arranging 
the  jurisprudence  of  a  people.  The  structure  of  government 
and  society,  and  all  their  complex  relations  are  compre- 
hended within  it.  Public  order,  sound  morals,  all  advance- 
ment in  the  arts  of  civilization,  and  all  growth  in  true- 
prosperity,  are  dependent,  in  a  great  degree,  upon  those 
rules  of  action,  which  the  state  prescribes  for  the  conduct 
of  its  citizens. 

These  difficulties  are  increased  by  two  considerations: 

1.  The  present  state  of  the  law,  and 

2.  The  present  state  of  society. 


x  FIRST  REPORT  OF  THE 

Our  language  cannot  furnish  a  better  picture  of  the 
present  condition  of  our  law,  than  the  words  of  the  first 
modifier  ot  the  common  law: 

"  Our  law  is  the  product  of  ten  centuries,  most  of  them 
filled  with  tumult  and  disorder;  it  is  compounded  of  many 
incongruous  elements,  Saxon  and  Norman  customs.  Feudal 
and  Roman  law,  provincial  usages,  and  the  decisions  of  vari- 
ous and  disagreeing  tribunals.  We  jiave  Equity  law, 
Admirality  law,  Common  [law,  as  the  law  of  marriage  and 
succession,  and  two  kinds  of  common  law,  one,  contradis- 
tinguished from  Statute,  and  the  other,  from  Equity.  Society 
has  undergone  an  entire  transformation.  The  Feudal  system 
has  fallen  to  pieces,  monarchical  institutions  have  given 
place  to  republican;  land,  from  being  almost  inalienable, 
has  become  an  article  of  daily  and  hourly  traffic,  and  com- 
merce, once  so  narrow  and  timid,  embraces  the  world. 
Personal  rights  and  personal  property  have  assumed  an 
importance  never  before  known ;  the  numberless  questions 
arising  from  modern  enterprise,  travel,  emigration  and  the 
expansion  of  industry  and  commerce  have  developed  new 
departments  of  jurisprudence ;  while  the  multiplication  of 
courts  required  by  the  necessities  of  an  increased  popula- 
tion, and  a  traffic  constantly  augumenting,  has  produced  a 
mass  of  adjudications,  painful  for  the  student  to  contemplate 
and  often  difficult  if  not  impossible  to  reconcile.  Thus  we 
have  arrived  at  the  period  of  which  the  Roman  historian, 
complained  so  justly,  when  "  the  infinite  variety  of  laws 
and  legal  opinions  had  filled  many  thousand  volumes, 
which  no  fortune  could  purchase  and  no  capacity  could 
digest." 

The  changes  which  the  last  eight  years  have  wrought  in 
the  fundamental  relations  of  society,  blotting  out  entirely* one 
of  the  great  classes  of  personal  relations — that  of  master  and 
slave — opening  the  ears  of  justice  to  those  who  were  before 
dumb  in  her  presence,  and  giving  parity  of  right,  authority 
and  remedy,  to  the  highest  and  lowliest;  breaking  down  the 
barriers  ot  the  jury-box,  and  permitting  the  landless  citizen 
and  the  man  of  African  descent  to  come  within  its  bounds, 


CODE  COMMISSIONERS.  xi 

opening  the  forum,  the  bar  and  the  bench,  to  the  honorable 
competition  of  the  colored  man— all  these  mighty  changes  in 
the  relations  of  the  great  component  elements  of  society, 
demand  equivalent  changes  in  the  laws  and  render  the  work 
both  of  the  Legislator  and  the  codifier,  one  of  extreme  diffi- 
culty and  delicacy.  The  Commissioners  are  determined  to 
perform  their  portion  of  it,  with  conscientious  carefulness, 
neglecting  no  pains,  and  refusing  no  aid,  which  will  tend  to 
secure  as  perfect  a  compilation  and  revision,  as  circumstances 
will  permit. 

GENERAL  DIVISION  OF  LABOR. 

In  considering  the  duties  of  the  Commissioners,  it  was 
found  that  they  were  comprehended  under  seven  distinct 
sub-divisions  as  follows: 

I.  A  Code  of  Civil  Practice  and  Procedure  in  the  several 
Courts  of  the  State. 

II.  A  Code  of  Criminal  Practice  and  Procedure,  in  the 
several  Courts  of  the  State. 

III.  A  Political  Code. 

IV.  A  Civil  Code. 

V.  A  Penal  Code. 

VI.  Suggestion  of  alterations,  amendments  and  revisions 
of  laws  necessary  to  carry  into  effect  the  Provisions  of  the 
Constitution. 

VII.  A  General  Analysis  of  all  the  Codes. 

THE  GENERAL  ANALYSIS. 

The  general  Analysis  of  Codes,  herewith  presented,  is  not 
expected  to  be  in  all  respects  complete  or  exhaustive.  It 
would  be  almost  impossible  to  present  an  accurate  analysis 
of  this  work  previous  to  its  completion.  The  one  presented 
will,  however,  indicate  the  general  plan  and  scope  of  the 
Code  projected  by  the  Commissioners,  and  contemplated  in 
the  act  of  appointment.  Such  variations  will  be  made  from 
this   plan  as  further  time,  and  progress,   may  show  to  be 


xii  FIRST  REPORT  OF  THE 

expedient.  The  analysis  now  submitted,  is  complete  as  to- 
all  the  Codes,  except  the  Code  of  Penal  Procedure,  which  ■ 
will  be  offered  at  some  time  during  the  session,  if  possible. 

ALTERATIONS,   AMENDMENTS,   &C. 

Under  this  head,  the  Commissioners  will  present  to  the 
General  Assembly,  from  time  to  time,  such  portions  of  the 
general  Code,  as  they  may  deem  most  important,  and  be  able 
to  complete.  Those  already  prepared,  and  only  waiting  to 
be  printed,  consist  of  the  powers  and  duties  of  Clerks  of  the 
Superior  Courts,  of  County  Commissioners,  of  the  Superior 
Court  Clerk  as  Probate  Judge,  General  Elections,  the  powers 
and  duties  of  Legislative  and  Executive  officers,  the  passage 
of  Private  Acts,  Testimony  in  Legislative  Proceedings. 

NECESSITY  FOR  THESE  PROVISIONS. 

The  Constitution,  providing,  as  it  does,  for  great  and 
numerous  changes  in  the  organization  of  counties,  immediate 
provisions  must,  of  course,  be  made  for  the  transaction  of 
county  business  and  the  holding  of  elections.  In  preparing 
this,  every  means  has  been  taken  by  the  Commissioners  to 
secure  the  most  perfect  system  compatible  with  our  situation. 
The  laws  of  almost  every  State  have  been  examined,  and 
whatever  seemed  most  simple  and  expedient,  has  been 
selected  to  become  a  part  of  our  organization.  It  was  con- 
sidered, as  indeed  is  well  known  to  have  been  the  intention 
of  the  Constitutional  Convention,  that  the  very  object  of 
establishing  the  Board  of  County  Commissioners,  and  extend- 
ing the  jurisdiction  of  Justices  of  the  Peace,  and  conferring 
probate  powers  upon  the  Clerks  of  Superior  Courts,  was  to 
separate  the  Judicial  and  Legislative  functions  of  the  County 
Court,  the  latter  being  conferred  upon  the  Board  of  Com- 
missioners, and  the  former  upon  the  Justices  and  Clerks. 
It  was  considered  too,  that  the  duties  of  County  Commis- 
sioners were  strictly  defined  by  section  two,  Article  VII,  of 
the   Constitution,  and  that  the  power  of  the  Legislature 


CODE  COMMISSIONERS.  xiii 

extends  only,  to  prescribing'  the  manner  in  which  those  duties 
should  be  performed.  No  extension  of  those  duties,  there- 
fore, has  been  attempted. 

THE  CODE  OF  CIVIL  PROCEDURE. 

It  was  deemed  necessary  to  provide  at  once,  certain  por- 
tions of  this  Code,  in  order  that  Justice  might  not  be  delayed, 
and  that  parties  might  have  adequate  remedies  in  all  cases. 
It  will  be  submitted  in  detached  portions,  as  rapidly  as  pos- 
sible. It  is  the  desire  of  the  Commissioners  to  complete  it 
before  the  adjournment  of  the  Genei-al  Assembly.  During 
the  consideration  of  portions  of  the  Code  presented  by  them, 
the  Commissioners  will  be  pleased  to  offer  any  explanation 
which  may  be  desired  in  regard  to  the  same. 

Hoping  that  by  earnest  and  united  effort,  order  may  be 
brought  out  of  disorder,  and  confusion  give  way  t©  certainty 
in  our  laws,  we  remain, 

With  the  utmost  respect, 

Your  obedient  servants, 

W.  B.  RODMAN,       ) 

V.  C.  BARRINGER,  J-  Commissioners. 

A.  W.  TOURGEE,      J 

Secretar/. 


xiv  SECOND  KEPORT  OF  THE 


Second  Report  of  the  Code  Commissioners. 


Office  of  Commissioners  of  Code,    ) 
Raleigh,  August  31st,  1868.      j 

To  the  General  Assembly  of  the  State  of  North  Carolina : 

The  Commissioners  appointed  by  the  Constitutional  Con- 
vention, to  prepare  among  other  things,  a  Code  of"  Practice 
and  Procedure  in  civil  actions  fo*  the  courts  of  this  State, 
respectfully  present  the  concluding  portion  of  that  Code 
with  the  exception  of  certain  detailed  regulations  for  what 
are  called  "  Special  Proceedings,  "  including: 

1.  Application  for  year's  provision  of  a  widow. 

2.  The  laying  off  of  dower. 

3.  Partition  of  real  and  personal  property. 

4.  Foreclosure  of  mortgage. 

5.  Habeas  Corpus. 

6.  Mandamus. 

7.  Laying  off  property  exempt  from  execution. 

8.  Ejectment  for  the  recovery  of  real  estate. 

9.  Proceedings  in  contempt. 

10.  Proceedings  on  impeachment. 

As  they  understand  the  law  of  New  York,  these  proceed- 
ings are  only  generally,  and  not  fully,  provided  for  in  its 
Code  of  Procedure,  but  are  regulated  at  least  in  part,  by  cer- 
tain statutes  contained  in  the  second  volume  of  their  Revised 
Statutes. 

Proceedings  in  these  cases,  are  accordingly  left  by  your 
Commissioners  for  the  present,  to  be  governed  by  the  exist- 
ing Statutes,  as  far  as  may  be  consistently  with  the  provis- 
ions of  the  Code  of  Civil  Procedure. 

The  Commissioners  ask  leave  to  submit  a  few  observations 
respecting  the  circumstances  under  which  their  work  has 
been  performed,  and  the  manner  of  its  performance. 


CODE  COMMISSIONERS.  xv 

The  Constitution  required  that  tl  ey  should  piesent  such 
a  Code  to  the  Legislature  at  its  present  session;  it  contem- 
plated the  abolition,  as  soon  as  such  a  Code  could  be  pre- 
pared, of  all  existing  forms  of  actions,  aiul  of  all  distinctions 
between  actions  at  law  and  suits  in  Equity ;  Courts  ot  Equity- 
were  immediately  abolished  by  the  Constitution.  The  Com- 
missioners felt  the  necessity  of  diligence  and  even  of  a 
degree  of  haste  incompatible  with  the  ,  perfection  which 
might  reasonably  be  expected  from  a  longer  time  for  consid- 
eration and  review.  They  commenced  their  labors  as  soon 
as  they  had  any  assurance  that  the  Constitution  would 
become  the  law  of  the  State,  and  in  two  months  have  pre- 
pared and  presented  to  your  body : 

1.  An  Analysis  of  the  entire  Code  of  the  State. 

2.  A  bill  for  the  government  of  counties. 

3.  A  bill  defining  the  powers  and  duties  of  Clerk's  of  the 
Superior  Courts  as  Judges  of  Probate. 

4.  A  bill  concerning  the  Jurisdiction  of  Justices  of  the 
Peace. 

5.  A  Code  of  Civil  Procedure  for  the  Superior  Courts. 
Besides  many  others  on   subjects  of    great  importance, 

requiring  both  research  and  reflection,  but  upon  which 
members  of  your  body  thought  early  legislation  necessary 
for  the  public  good.  Some  idea  may  be  formed  of  the  dili- 
gence with  which  the  Commissioners  have  labored,  when  it 
is  considered  that  nearly  five  years  elapsed  between  the 
appointment  of  the  Commissioners  to  prepare  the  Revised 
Code,  and  its  publication.  In  reference  to  the  Code  of 
Practice,  so  great  has  been  their  sense  of  the  necessity  for 
promptly  providing  rules  for  the  guidance  of  the  newly 
created  Courts,  that  they  have  ventured  to  present  it  to  you 
in  piece  meal,  without  reserving  to  themselves  any  oppor- 
tunity for  reviewing  it  as  a  whole. 

Under  such  circumstances,  it  is  inevitable  that  imperfec 
tions  will  be  found, which  such  a  review  would  have  readily 
disclosed.     We  feel  authorized,  therefore,  to  ask  a  generous 
criticism  of  our  labors  from  [you,  as  well  as  from  the  profes- 
sion, which  because  it  is  best  able  to  appreciate  the  difficul- 


xvi  SECOND  KEPORT  OF  THE 

ties  of  the  task,  is  always  disposed  to  regard  in  a  kindly 
spirit,  every  effort  directed  in  good  faith  to  improve  the 
administration  of  justice. 

As  the  Constitution  adopted  the  language  of  the  law  of 
New  York  in  its  provisions  for  abolishing  the  distinction  in 
the  forms  of  actions;  and  as  the  Code  of  that  State  was  the 
first  adopted,  and  has  been  the  model  on  which  those  of 
many  other  States  have  been  since  framed,  the  Commis- 
sioners did  not  hesitate  to  take  the  Code  of  New  York  as 
the  basis  of  that  to  be  prepared  for  this  State,  with  such 
modifications  as  the  differing  circumstances  of  the  two  States 
might  make  expedient. 

In  general,  they  have  endeavored  to  make  such  changes 
only  as  were  absolutely  commanded  or  clearly  implied  in 
the  words  of  the  Constitution,  or  as  were  manifestly  proper. 
To  point  out  the  changes  in  detail,  would  occupy  too  much 
of  your  time. 

The  Code  we  present,  forms  as  nearly  as  was  possible 
under  the  circumstances  in  which  it  has  been  prepared,  a 
consistent  whole;  there  is  scarce  any  part  which  can  be 
altered  without  involving  alteration  in  some  or  numerous 
others.  We  therefore  invite  your  honorable  body  to  pass  it 
as  it  is,  and  leave  to  experience,  to  expose  the  places  which 
require  amendment.  The  Code  of  New  York  was  adopted 
in  1848  as  it  come  from  the  hands  of  the  Commissioners, 
and  has  ever  since  been  undergoing  amendments,  suggested 
by  experience,  and  so  framed  by  the  most  able  lawyers,  as 
to  fit  in  and  harmonize  with  the  other  parts. 

All  can  understand  the  value  to  a  people,  of  a  Code  of 
laws,  embodying  and  regulating  according  to  justice  and 
reason,  the  rights  and  duties  of  men  in  all  the  varying  rela- 
tions of  life  and  business;  but  none  but  those  whose  profes- 
sion makes  them  necessarily  familliar  with  the  modes  of 
applying  those  principles  to  actual  transactions,  can  appre- 
ciate that  the  machinery  for  such  application  is  as  essential 
to  justice  as  is  the  recognition  of  its  principles. 

In  every  Code  for  the  administration  of  law,  much  is  fixed 
by  the  laws  of  the  human  mind,  and  is,  therefore,  essentially 


CODE  COMMISSIONERS.  xvii 

alike  in  the  practices  of  all  countries;  while  much  also  is 
purely  arbitrary,  and  depends  for  its  wisdom,  on  the  habits 
and  condition  of  the  people  to  whom  it  is  applied. 

For  example :  every  man  who  has  a  complaint  against  his 
neighbor,  for  which  he  seeks  redress,  must  first  summon  the 
supposed  wrong-doer  before  some  Judge,  and  must  inform 
him  of  the  grounds  of  the  complaint,  and  the  defendant  must 
hare  an  opportunity  to  answer. 

These  things  are  fixed  in  justice,  and  are  to  be  found  in 
the  practice  of  all  countries.  But  what  shall  be  the  nature 
of  the  summons, — whether  or  not  the  defendant  shall  be 
arrested  and  held  to  bail,  the  time  of  notice,  the  manner  of 
service,  and  a  vast  number  of  other  details  which  it  is  indis- 
pensable for  the  convenience  of  all  parties  shall  be  prescribed 
by  some  fixed  and  certain  law,  are  purely  arbitrary,  and  are 
scarcely  ever  the  same  in  any  two  States.  It  is  not  so 
important  what  they  are,  as  that  they  should  be  fixed  and 
clear  and  known,  and  conformable  to  the  business  usages  of 
a  people,  their  grade  of  culture  and  facilities  for  mutual 
intercourse.     . 

We  make  these  general  observations  to  show  the  views 
which  have  guided  us  in  the  preparation  of  this  Code,  con- 
fident, that  whatever  may  be  the  skill  with  which  we  have 
applied  them,  the  views  themselves  will  be  received  by  all, 
as  true. 

Detailed  regulations  for  what  are  called  "  Special  Proceed- 
ings" are  not  urgent,  they  being  sufficiently  provided  for,  at 
present,  by  the  Code,  and  by  the  existing  laws;  we  do  not 
propose,  therefore,  to  present  those  at  this  session  of  the 
Legislature.  Very  respectfully, 

WM.  B.  RODMAN, 
A.  W.  TOURGEE, 
V.  C.  BARRINGER. 


.ANALYSIS 


OF    THE 


Code  op  Civil  Procedure 


TITLE  I.  General  provisions  in  regard  to  actions. 

II.  Superior  courts. 

III.  General  provisions  as  to  civil  actions, 

IV.  Limitation  of  actions. 

V.  Parties  to  uivil  actions. 

VI.  Of  the  place  of  trial  of  civil  actions. 

VI T.  Manner  of  commencing  civil  actions  and  the 
service  of  the  summons. 

VIII.  Of  the  pleadings  in  civil  actions. 

IX.  <  >F  the  provisional  remedies  in  civil  actions. 

X.  Op  the  trial  and   judgment  in  civil  actions. 

XI.  Of  the  execution  of  judgment  in  civil  actions. 

XII.  Of  the  costs  in  civil  actions. 

XIII.  Of  appeals  in  civil  actions. 

XIV.  Of   the    miscellaneous    proceedings    in    civil 

t 
ACTIONS    AND    GENERAL    PROVISIONS.  ' 

XV.  Actions  in  particular  cases. 

XVI.  General  provisions. 

XVII.  Regulations  respecting  existing  suits. 

XVIII.  Of  the  Supreme  court. 

XIX.  Probate  courts'. 

XX.  The  courts  of  justices  of   the  peace. 
XX  L      Fees  of  clerks  and  other  officers. 

XXII.  Of*  the    printing    oe   the  code    of    civil  pro- 

cedure. 

XX I II.  Ratification  of  statutes  composing  this  code. 


sx  ANALYSIS. 

TITLE  I. 

GENERAL   PROVISIONS. 

£>ec.    8.  To  what  actions  these  enactments  applicable. 
9.  Definition  of  Court ;  to  mean  clerk,  when. 


TITLE  II. 


SUPERIOR    COURTS. 


Sec.  10.  Original  civil  jurisdiction  of  the  Superior  Courts. 
11.  Terms  of  the  several  Superior  Courts. 


TITLE  III. 

GENERAL    PROVISIONS    AS   TO    CIVIL   ACTIONS. 

Sec.  12.  Forms  of  civil  actions — Distinction  between  actions  at  law  and 
suits  in  equity  abolished. 

13.  Parties  designated,  plaintiff  and  defendant. 

14.  Actions  on  judgments  when  they  may  be  brought. 

15.  Feigned  issues  abolished. 


TITLE  IV. 

LIMITATION    OF   ACTIONS. 

CHAPTER  I. 

Actions  in  General* 

Sec  16.  Time  of  commencing  actions  in  general. 

17.  Period  of  limitation;  objection  must  be  taken  by  answer. 

CHAPTER  II. 

Time  of  commenciu-g  actions  for  the  recovery  ot  real  property. 

Sec.  18.  When  the  State  will  not  sue.    Thirty  years  possession.     Twenty- 
one  years  possession  under  colorable  title. 

19.  Such  possession  valid  against  claimants  under  the  State. 

20.  When  persons  having  title  must  sve, 


ANALYSIS.  xxi 

Sec' 21.  Proviso  in  case  of  judgment  for  plaintiff  reversed,  &c. 

22.  Seizin  within  twenty  years  when  necessary. 

23.  When  adverse  possession  for  twenty  years. 

24.  Action  after  entry. 

25.  Possession  presumed.    Occupation  when  deemed  under  legal  title. 

26.  Relation  of  landlord  and  tenant. 

27.  Persons  under  disabilities. 

28.  Cumulative  disabilities. 

29.  Railroads,  &c.,  not  barred. 

CHAPTER  III 

Time  of  commencing  actions  other  than  for  the  recovery  of  real 
property. 

Sec.  30.  Periods  of  limitation  prescribed. 

31.  Ten  years. 

32.  Seven  years. 

33.  Six  years. 

34.  Three  years. 

35.  One  year. 

36.  Six  months. 

37.  Action  for  other  relief. 

38.  Limitations  to  apply  to  actions  by  the  State. 

39.  Action  upon  an  account  current;  the  statute  begins  to  run  when. 

CHAPTER  IV. 
General  provision  as  to  the  time  of  commencing  actions. 

Sec.  40.  When  action  deemed  commenced. 

41.  Exception — defendant  out  of  the  State. 

42.  Exceptions — persons  under  difficulties. 

43.  Peath  of  a  person  entitled  before  limitation  expires. 

44.  Actions  by  aliens  ;  time  of  war  not  counted. 

45.  When  judgment  reversed,  &c. 

46.  Time  of  stay  by  injunction,  not  counted. 

47.  Time  during  controversy  about  probate  of  will,  &c,  not  counted. 

48.  Disability  must  exist  when  the  right  of  action  accrued. 

49.  When  several  disabilities  ;  all  must  be  removed. 

50.  Acknowledgment  by  partner,  &c,  after  dissolution. 

51.  Acknowledgment  or  new  promise  must  be  in  writing. 

52.  Co-tenants  ;  when  some  barred,  others  not. 

53.  This  title  not  applicable  to  bills,    &c,  of    corporations,   or  to 

bank  notes. 

54.  Nor  to  actions  against  directors,  &c,  of  moneyed  corporations  or 

banking  associations  ;  limitation  in  such  cases  prescribed. 


xxii  ANALYSIS. 

TITLE  V. 

l'ARTIES    TO    CIVIL    ACTIONS. 

Sec.  55.  Party  in  interest  to  sue.    Action  by  grantee  of  land  held  adversely. 
Assignient  of  tiling  in  action. 

56.  Action  by  and  against  a  married  woman. 

57.  Action  by  executor,  trustee,  &c. 

58.  Infant  to  appear  by  guardian. 

59.  Appointment  of  guardian  in  particular  action. 

60.  Who  to  be  plaintiff. 

61.  Who  to  be  defendant. 

62.  Parties  to  be  joined,  &c. 

63.  Parties  to  bills  and  notes,  &c. 

6i.  Existing  suits  ;  action  when  not  to  abate. 

65.  Court  may  determine  controversy  and  interpleader. 


TITLE  VI. 

OF   THE    PLACE    OV    TRIAL    Of    CIVIL    ACTION'S. 

Sec.  66.  Actions  to  be  tried  where  subject  matter  situated. 

67.  Actions  to  be  tried  where  cause  of  action  arose. 

68.  Actions  to  be  tried  where  defendant  resides. 
60.  Change  of  place  of  trial. 


TITLE  VII. 

OF    THE    MANNER    OF     COMMENCING    CIVIL   ACTIONS,    AND    THE    SERVICE 
OF    THE    SUMMONS. 

Sec.  70.  Manner  of  commencing  civil  actions. 

71.  Summons;  by  whom  issued,  &c. 

72.  Power  to  sue  as  a  pauper  ;  how  obtained. 
7">.  Form  ot  the  summons. 

74.  What  summons  to  contain. 

75.  Return  of  summons. 

76.  Service  of  the  complaint. 

77.  Plaintiff  failing  to  file  complaint  within  ten  days. 

78.  Plaintiff  failing  to  file  complaint  within  the  time  for  defendants 

appearance. 

79.  Time  of  filing  pleadings  may  be  enlarged. 

80.  Plaintiff  shall  naim  an  attorney. 


ANALYSIS.  xxiii 

Sec.  81.  Notice  of  no  personal  claim. 

82.  Manner  of  service  of  summons. 

83.  Service  by  publication  ;  form  of  sumaions. 

84.  Manner  and  effect  of  publication. 

85.  Defendant  allowed  to  defend  before  and  after  judgment. 

86.  Action  for  foreclosure  of  mortgage. 

87.  JoinLand  several  Debtors — Parties. 

88.  When  service  complete. 
80.  Proof  of  service. 

90.  Jurisdiction — Appearance — Appearance — Notice  of  Us  pendens. 


TITLE  VIII. 

OF   THE    PLEADINGS    IX    CIVIL   ACTION. 
CHAPTER  I. 

Of  the  Complaint. 

Sec.  91.  Forms  of  pleading. 
52.  Complaint. 
93.  Complaint,,  what  to  contain. 

CHAPTER  II. 

The  Demurrer. 

Sec.  91.  Defendant  to  demur  or  answer. 
9-3.  When  defendant  may  demur. 

96.  Demurrer  shall  specify  grounds  of  objection. 

97.  How  to  proceed  if  complaint  be  amended. 

98.  Objection  not  appearing  on  complaint. 

99.  Objection  when  deemed  waived. 

CHAPTER  III. 

The  Answer. 

Sec  100.  Answer  what  to  contain. 

100.  Counter  claim  ;  Several  defences. 

101.  Demurrer  and  answer. 

102.  Sham  irrelevant  defences. 

CHAPTER  IV. 

The  Reply. 

Sec  105.  Reply ;  demurrer  to  answer. 

106.  Motion  for  judgment  on  answer. 

107.  Demurrer  to  reply. 


xxiv  ANALYSIS. 

CHAPTER  V. 

Duties  and  powers  of  the  Clerk  of  the'^Superior  Court  in  relation 
to  the  pleadings,  and  in  collateral  matters. 

Sec.  108.  Jurisdiction  of  clerk  on  pleading,  &■&. 

109.  Either  party  may  appeal 

110.  Duty  of  the  clerk  on  appeal  prayed. 

111.  Issues  of  law,  sent  to  Judge. 

112.  Party  to  be  heard  before  Judge. 

1 13.  Duly  of  Judge  on  appeal. 

114.  Judge  to  keep  a  Docket. 

115.  Judgment  on  matter  of  fact  final :    on'  matter  of  law  may  be 

appealed  from. 

CHAPTER  VI. 
General  rules  of  pleading. 

Sec.  116.  Pleadings  to  be  subscribed  and  verified. 

117.  Pleadings,  how  verified. 

118.  Items  of  amount ;  particulars. 

119.  Pleadings,  how  construed. 

120.  Irrelevant  or  redundant ;  indefinite  or  uncertain. 

121.  Judgments, 'how  to  be  pleaded. 

122.  Conditions  precedent,  how  to  be  pleaded  ;  instrument  for  pay- 

ment of  money  only. 

123.  Private  statutes,  how  to  be  pleaded. 

124.  Libel  and  Blander,  how  stated  in  complaint. 

125.  Answer  in  such*cases. 

126.  What  causes  of  action  may  be  joined  in  the  same  complaint. 

127.  Allegation  not  denied,  when  to  be  deemed  true. 

CHAPTER  VII. 
Mistakes  in  pleading  and  amendments. 

Sec.  128.  Material  variance. 

129.  Immaterial  variance.     . 

130.  A  failure  of  proof,  when. 

131.  Amendment  of  course  after  allowance  of  demurrer. 

132.  Amendments  by  order, 

133.  Relief,  in  case  of  a  mistake. 

134.  When  plaintiff  ignorant  of  the  name  of  defendant 

135.  Errors  or  defects  not  substantial  to  be  disregarded. 

136.  Supplemental  pleadings. 


ANALYSIS.  xxv 

CHAPTER  VIII. 

Of  the  qualification  and  general  duties  of  Clerks  of  the  Superior 
Courts, 

Sec.  137.  Bond  of  Clerk. 

138.  Bond,  how  approved. 

139.  Qualification  of  Clerks. 

140.  Failure  to  give  bond,  &c. 

141.  Office,  where  to  be  kept ;  when  to  be  open. 

142.  To  receive  official  papers,  &c, 

143.  To  keep  records. 

144.  Books  to  be  kept  by  Clerks. 

145.  Books  to  be  furnished  by  Secretary  of  State. 

146.  Papers  in  each  action  to  be  kept  separate  and  filed  together. 

147.  Solicitor  to  examine  records. 


TITLE  IX. 

OF    THE    PROVISIONAL    REMEDIES    IN    CIVIL    ACTIONS. 

Chapter  I. — Aeeest  and  Bail. 

"        II. — Claim  and  Delivery  of  Personal  Property.' 

"        III. — Injunction. 

"        IV. — Attachment. 

"        V. — Provisional  Remedies. 

CHAPTER   I. 

Arrest  and  Bail. 

SbC.  148.  No  person  to  be  arrested,  except  as  prescribed. 

149.  In  what  cases. 

150.  Order  for  arrest,  by  who  to  be  made. 

151.  .Affidavit  to  obtain  order  for  arrest.    To  what!  actions  this  chap- 

ter applies. 

152.  Security  by  plaintiff  before  order  for  arrest. 

153.  Order,  when  made,  and  its  form. 

154.  Affidavit  and  order  to  be  delivered  to  sheriff,  and  copy  to  de- 

fendant. 

155.  Arrest,  how  made. 

15C.  Defendant  to  be  discharged  on  bail  or  deposit. 

157.  Bail,  how  given. 

158.  Surrender  of  defendant. 
359.  Surrender  of  defendant. 
160.  Bail,  how  proceeded  against 


xxiv  ANALYSIS. 

CHAPTER  V. 

Duties  and  powers  of  the  Clerk  of  the'^ Superior  Court  in  relation 
to  the  pleadings,  and  in  collateral  matters. 

Sec.  108.  Jurisdiction  of  clerk  on  pleading,  &o. 

1 09.  Either  party  may  appeal. 

110.  Duty  of  the  clerk  on  appeal  prayed. 

111.  Issues  of  law,  sent  to  Judge. 

112.  Party  to  be  heard  before  Judge. 

1 13.  Duty  of  Judge  on  appeal. 

114.  Judge  to  keep  a  Docket. 

115.  Judgment  on  matter  of  fact  final :   on*  matter  of  law  may  be 

appealed  from. 

CHAPTER  VI. 
General  rules  of  pleading. 

Sec.  116.  Pleadings  to  be  subscribed  and  verified. 

117.  Pleadings,  how  verified. 

118.  Items  of  amount ;  particulars. 

119.  Pleadings,  how  construed. 

120.  Irrelevant  or  redundant ;  indefinite  or  uncertain. 

121.  Judgments, 'how  to  be  pleaded. 

122.  Conditions  precedent,  how  to  be  pleaded  ;  instrument  for  pay- 

ment of  money  only. 

123.  Private  statutes,  how  to  be  pleaded. 

124.  Libel  and  slander,  how  stated  in  complaint. 

125.  Answer  in  such'cases. 

126.  What  causes  of  action  may  be  joined  in  the  same  complaint. 

127.  Allegation  not  denied,  when  to  be  deemed  true. 

CHAPTER  VII. 
Mistakes  in  pleading  and  amendments. 

Sec.  128.  Material  variance. 

129.  Immaterial  variance.     . 

130.  A  failure  of  proof,  when. 

131.  Amendment  of  course  after  allowance  of  demurrer. 

132.  Amendments  by  order, 

133.  Relief,  in  case  of  a  mistake* 

134.  When  plaintiff  ignorant  of  the  name  of  defendant 

135.  Errors  or  defects  not  substantial  to  be  disregarded. 

136.  Supplemental  pleadings. 


ANALYSIS.  xxv 

CHAPTER  VIII. 

Of  the  qualification  and  general  duties  of   Clerks  of  the  Superior 
Courts, 

Sec.  137.  Bond  of  Clerk. 

138.  Bond,  how  approved. 

139.  Qualification  of  Clerks. 

140.  Failure  to  give  bond,  &c. 

141.  Office,  where  to  be  kept ;  when  to  be  open. 

142.  To  receive  official  papers,  &c. 

143.  To  keep  records. 

144.  Books  to  be  kept  by  Clerks. 

145.  Books  to  be  furnished  by  Secretary  of  State. 

146.  Papers  in  each  action  to  be  kept  separate  and  filed  together. 

147.  Solicitor  to  examine  records. 


TITLE  IX. 

OF   THE   PROVISIONAL   REMEDIES    IN    CIVIL   ACTIONS. 

Chapter  I. — Areest  and  Bail. 

"        II. — Claim  and  Delivery  of  Personal  Property.* 

"        III. — Injunction. 

"        IV. — Attachment. 

"        V. — Peoyisional  Remedies. 

CHAPTER   I. 

Arrest  and  Bail. 

SbC.  148.  No  person  to  be  arrested,  except  as  prescribed. 

149.  In  what  cases. 

150.  Order  for  arrest,  by  who  to  be  made. 

151.  .Affidavit  to  obtain  order  for  arrest.     To  what  actions  this  chap- 

ter applies. 

152.  Security  by  plaintiff  before  order  for  arrest. 

153.  Order,  when  made,  and  its  form. 

154.  Affidavit  and  order  to  be  delivered  to  sheriff,  and  copy  to  de- 

fendant. 

155.  Arrest,  how  made. 

15G.  Defendant  to  be  discharged  on  bail  or  deposit. 

157.  Bail,  how  given. 

158.  Surrender  of  defendant. 

159.  Surrender  of  defendant. 
ICO.  Bail,  how  proceeded  against 


xxvi  ANALYSIS. 

•Sbc.  161.  Bail,  how  exonerated. 

162.  Delivery  of  undertaking  to  plaintiff,  and  its  acceptance  or  rejec- 

tion by  him. 

163.  Notice  of  justification.     New  hail. 

164.  Qualification  of  hail. 

165.  Justification  of  hail. 

166.  Allowance  of  bail. 

167.  Deposit  with  the  Sheriff. 

168.  Payment  of  deposit  into  court. 

169.  Substituting  bail  for  deposit. 

170.  Deposit,  how  disposed  of. 

171.  Sheriff,  when  liable  as  bail. 

172.  Proceedings  on  judgment  against  sheriff. 

173.  Bail  liable  to  sheriff. 

174.  Vacating  order  of  arrest  or  reducing  bail. 
17-5.  Affidavits  on  motion. 

CHAPTER  II. 

Claim  and  Delivery-  of  Personal  Property. 

Sec.  176.  Delivery  of  personal  property. 

177.  Affidavit  and  its  requisites. 

178.  Requisition  to  sheriff  to  take  and  deliver  the  property. 
]  79.  Security  by  plaintiff. 

180.  Exception  to  sureties. 

181.  Defendant,  when  entitled  to  re-delivery. 
1S2.  Justification  of  defendant's  sureties. 

183.  Qualification  and  justification  of  sureties. 

18 4.  Properly,  how  taken  when  concealed  in  building  or  inclosure. 

185.  Property,' how  kept. 

186.  Claim  of  property  by  third  person. 

187.  Notice  and  affidavit,  when  and  where  to  be  filed. 

CHAPTER  III. 
Injunction. 

Sec.  188.  Injunction  by  order. 

189.  Injunction,  in  what  cases. 

190.  At  what  time  it  may  be  granted.     Copy  affidavit  to  be  served. 

191.  Injunction  after  answer. 

192.  Security  upon  injunction.     Damages. 

193.  Order  to  show  cause.     Restraint  in  meantime. 

194.  Security  upon  injunction  to  suspend  business  of  corporation. 

195.  Motion  to  vacate  or  modify  injunction. 
190.  Affidavits  on  motion. 


ANALYSIS.  xxvii 

CHAPTER  IV. 
Attachment. 

Sec.   197.  Property  of  foreign  corporation*,  and  of  non-resident  or  abscond- 
ing, or  concealed  defendants,  may  be  attached. 
108.  Publication  to  be  made. 
199.  Warrant,  by  whom  granted. 
'-200.  When  warrant  granted  by  Justice  of  the  Peace. 

201.  In  what  cases  warrant  may  be  issued.    Affidavits  may  be  filed. 

202.  Security  on  obtaining  warrant. 

203.  Warrant,  to  whom  directed  and  what  to  require. 

204.  Mode  of  preceding  in  executing  warrant. 

205.  Proceedings  in  case  of  perishable  property  or  vessels. 

206.  Interest  in  corporations  or  associations  liable  to  attachment. 

207.  Attachment,  how   executed   on   property  incapable   of  manual 

delivery. 

208.  Certificate  of  defendants  interest  to  be  furnished. 

209.  Judgment,  how  satisfied. 

210.'  When  action  to  recover  notes,  &c,  of  defendant,  may  be  prose- 
cuted by  plaintiff  in  tlfe  action  in  which  the  attachment  issued. 

211.  Bond  to  sheriff  on  attachment,  how  disposed  of  on  judgment  for 

defendant, 

212.  Discharge  of  attachment,  and  return  of  property  or  its  proceeds, 

to  defendant  oh  his  appearance  in  action. 

213.  Undertaking  on  the  part  of  the  defendant.     Discharge  of  attach- 

ment. 

214.  When  the  sheriff  to  return  warrant  and  proceedings  thereon. 

CHAPTER  V. 

Provisional  Remedies. 

Sec.  215.  Powers  of  court  as  to  receiver's,  deposit  of  money,  &c,  in  court, 
and  other  provisional  remedies.  Judgment  for  sum  admit- 
ted due. 


TITLE  X. 

OX    THE    TRIAL    AND    JUDGMENT    IN    CIVIL    ACTIONS. 

Chapter  I. — Judgment  upon  failure  to  answer.  &c. 
"    II. — Issues  and  the  mode  of  trial. 
"'   III. — Trial  by  Jury. 
"    IV. — Trial  by  the  Court. 
"    V. — Trial  by  Referees. 
':    VI. — The  manner  of  entering  judgment. 


xxviii  ANALYSIS. 

CHAPTER  I. 
Judgment  upon  failure  to  answer,  &c. 

Sec.  216.  Judgment  defined. 

217.  Judgment  on  failure  of  defendant  to  answer,   or  for  excess  ove*- 

counter-claim. 

218.  Judgment  on  prirolous  demurrer,  answer  or  reply. 

CHAPTER  II. 
Issues   and  Mode  of  Trial. 

Sbc.  219.  The  different  kinds  of  issues. 

220.  Issue  of  law. 

221.  Issue  of  fact. 

222.  On  issues  of  both  law  and  fact,  the  issue  of  law  to  be  first  tried,. 

223.  Trial  defined. 

224.  Issues,  how  tried. 

225.  Other  issues  to  be  tried  by  the  Court  or  Judge. 

226.  Issues  of  fact'when  to  be  tried. 

227.  Trial  may  be  postponed  by  Clerk,  when. 

228.  Trial  postponed  by  Judge  in  term,  when. 

229.  Criminal  calendar  first  disposed  of.     Order  of  disposing  of  issue?. 

in  civil  actions. 

CHAPTER  III. 
Trial  by  Jury. 

Sec.  230.  Separate  trials. 

231.  Judge  to  be  furnished  with  copy  of  pleadings. 

232.  General  and  special  verdicts  defined. 

233.  When  jury  may  render  either  general  or  special  verdict,  and 

when,  Judge  may  direct  special  finding. 

234.  On  special  finding  with  general  verdict,  the  former  to  control. 

235.  Jury  to  assess  defendant,  damages  in  certain  cases. 

236.  Entry  of  the  verdict.     Motion  for  new  trial  on  Judge's  minute*. 

237.  Judge  to  explain  law,  but  to  express  no  opinion  on  facts. 

238.  Judge  to  put  his  instructions  in  writing. 

239.  Couusel  to  put  their  prayer  for  instructions  in  writing. 

CHAPTER  IV. 
Trial  by  the   Court. 

Sec  240.  Trial  by  jury,  how  waived. 

241.  On  trial  by  the  Court,  judgment  how  to  be  given. 

242.  Exceptions,  how  and  when  taken. 

243.  Proceedings  upon  judgment  on  issm  of  law. 


ANALYSIS.  xxix 

CHAPTER  V. 
Trial  by  Referees. 

Sec.  244.  All  issues  referable  by  consent. 

245.  When  reference  may  be  compulsively  ordered. 

246.  Mode  of  trial ;  Effect  of  report ;  Review. 

247.  Referees,  bow  chosen.     Who  may  be  Referee.-    Report. 

CHAPTER  VI. 

Manner  of  Entering  Judgment. 

-Sec.  248.  Judgment  may  be  for,  or  against,  any  of  the  parties ;  may  grant 
dependent  affirmative  relief.     Complaint  may  be  dismissed  for 
neglect  to  prosecute  action.    Judgment  against  married  wo- 
man. 
249  •  The  relief  to  be  awarded  to  the  plaintiff. 

250,  Rate  of  damages,  where  damages  are  recoverable. 

251.  Judgment  in  action  for  recovery  of  personal  property. 

'252.  Clerk  to  enter  judgments  on  Judgment  Book,  also  judgments 
rendered  in  other  Courts,  and  index   them. 

253.  Judgment  roll. 

254.  Existing  suits,  Judgments  when  and  how  to  be  docketed.     Se- 

cured on  appeal. 


TITLE  XL 

OF    THE    EXECUTION    OF    THE    JUDGMENT    IN    CIVIL    ACTIONS. 

CHAPTER  I. 

The  Execution. 

Sbc.  255.  Execution  within  three  years  of  course. 

256  After^three  years,  to  be  issued  only  by  leave  of  Court.     Leave 

how  obtained. 
257.  Judgments,  how  enforced. 
UoS.^The  different  kinds  of  execution. 

259.  To  what  counties  execution  may  be  issued.    Execution  against 

a  married  woman. 

260.  Execution  against  the  person,  in  what  cases. 

261.  Form  of  the  execution. 

262.  To  be  returnable  in  sixty  days. 

263.  Existing  laws  re'ating  to  executions  continued  until  otherwise 

provided, 


xxx  ANALYSIS. 

CHAPTER  II. 
Proceedings  Supplementary  to  the  Execution. 

Sec.  264.  Existing  suits.     Order  for  discovery  of  property.     Examination 
of  judgment,  debtor,  &c. 

265.  Existing  suits.     Any  debtor  may  pay  execution   against  his 

creditor. 

266.  Existing  suits.     Examination  of  debtors  of  judgment  debtor,  or 

of  those  having  property  belonging  to  him.    Joint  debtors. 

267.  Existing  suits.     Witness  required  to  testify. 

268.  Existing  suits.     Compelling  party  or  witnesses  to  attend. 

269.  Existing  suits.     What  property  may  be  ordered  to  be  applied  to 

the  execution. 

270.  Existing  suits.     Judge  may  appoint  receiver,  and  forbid  transfer, 

&o,  of  property — order,  &c. 

271.  Existing  suits.     Proceedings  upon  claim  of  another   party  to 

property,  or  on  denial  of  indebtedness  to  judgment  debtor. 

272.  Existing  suits.   -Reference  by  Judge. 

273.  Existing  suits.     Costs  of  proceeding. 

214.  Existing  suits.     Disobedience  of  order  how  punished. 


TITLE  XII. 

OF    THE    COSTS    IN    CIVIL    ACTIONS. 

Sec.  275.  Fee  bill  of  Attorney  abolished. 

276.  When  allowed  of  course  to  the  plaintiff.     Several  actions  on  one 

instrument. 

277.  When  allowed  to  defendant. 

278.  When  allowed  to  either  party  in  the  discretion  of  the  court. 

279.  Amount  of  costs  allowed. 

280.  Additional  allowance. 

281.  Allowance,  iiow  computed.     Difficult  and  extraordinary  cases. 

282.  Report,  when  allowed. 

283.  Costs,  how  to   be  inserted  in  judgment.     Adjustment  of  inter- 

locutory costs. 

284.  Fees  of  clerks,  sheriffs,  &e. 

285.  Referees  fees, 

286.  Costs  against  infant  plaintiff. 

287.  Costs  in  action  by  or  against  an  execution  or  administrator,  trus- 

tees of  an  express   trust,  or  a  person  expressly  authorized  by 
statute  to  sue. 

288.  Costs  in  civil  actions  by  the  State. 

289.  Costs  in  actions  by  the  State,  for  a  private  person. 

290.  Costs  against  assignee  after  action  brought,  of  cause  of  action. 


ANALYSIS.  xxxi 


Sec.  291.  Costs  on  a  settlement. 
192.  Costs  on  appeals. 

293.  Costs  in  existing  actions. 

294.  Costs  in  special  proceedings. 

295.  Costs  on  appeals  from  Justices  of  the  Peace. 


TITLE  XIII. 

OF    APPEALS    IN    CIVIL   ACTIONS. 

Sec.  296.  Existing  suits ;  writs  of  error  abolished,  and  appeals  substituted. 

297.  Orders  made  out  of  court,  how  vacated  or  modified. 

298.  Existing  suits;  who  may  appeal. 

299.  Appeal;  in  what  cases  it  may  be  taken. 

300.  When  taken ;  execution  not  suspended  when. 

301.  Appeal  to  be  entered  by  clerk  on  Judgment  Docket,  case  how 

stated  and  settled. 

302.  Clerk  to  make  copy  of  judgment  roll,  and  to  seed  to  Clerk  of 

Supreme  Court. 

303.  On  appeal,  security  must  be  given,  or  deposit  made,  unless  waived . 

304.  Existing  suits — on  judgment  for  money — security  to  stay  execu- 

ecution — new  undertaking   on  sureties  in  first — becoming  in- 
solvent. 

305.  Existing  suits — if  judgment  be  to  deliver  document  or  personal 

property,  it  must  deposited  or  security  given. 
•306.  Existing  suits — if  to  execute  conveyance,   it  must  be  executed 
and  deposited. 

307.  Existing  suits — security  where  judgment  is  to  deliver  real  prop- 

erty, or  for  a  sale  of  mortgaged  premises. 

308.  Existing  suits — stay  of  proceedings  upon  security  being  given. 

309.  Existing  suits — Undertakings   may   be  in   one   instruments   or 

several. 

310.  Existing  suits — security  to  be  approved  and  to  justify. 

311.  Existing  suits — perishable  property  may  be  sold  notwithstanding 

appeal. 

312.  Existing  suits, — undertaking  must  be  filed. 

313.  Existing  suits — intermediate  orders  effecting  the  judgment  may 

be  renewed  on  the  appeal.  • 

314.  Existing  suits — judgment  on  appeal — restitution. 


xxxii    .  ANALYSIS. 

TITLE  XIV. 

OF   THE   MISCELLANEOUS   PROCEEDINGS    IN  CIVIL  ACTIONS  AND  GENERAL 

PROVISIONS. 

CHAPTER  I. 
Submitting  a  Controversy  without  Action. 

Sec.  315.  Controversy  how  submitted  without  action. 

316.  Judgment. 

317.  Judgment  how  enforced  or  appealed  from. 

CHAPTER  II. 

Proceedings  against  Joint  Debtors,  Heirs,  Devisees,  legatees,  and 
Tenants  holding  under  a  Judgment  Debtor, 

Sec.  318.  Parties,  not  summoned  in  action  on  joint  contract,  may  be  sum- 
moned after  judgment. 

319.  If  judgment  debtor  die,  his  representatives  may  be  summoned. 

320.  Form  of  summons. 

321.  To  be  accompanied  by  affidavit  of  amount  due. 

322.  Party  summoned  may  answer  and  defend. 

323.  Subsequent  pleadings  and  proceedings  same  as  in  action. 

324.  Answer  and  reply  to  be  verified. 

CHAPTER  III. 
Confession  of  Judgment  without  Action. 

Sec.  323.  Judgment  may  be  confessed  for  debt  due  or  contingent  liability. 

326.  Statement  in  writing  and  form  thereof. 

327.  Judgment  and  execution. 

CHAPTER  IV. 

Offer  of  the  dependant  to  compromise  the  whole  or  a  part  of  the 

Action. 

Sec.  328.  Offer  of  compromise. 

329.  Dependant  may  offer  to  liquidate  damages  conditionally. 

330.  Effect  of  acceptance  or  refusal  of  offer. 

CHAPTER  V. 

Admission  or  Inspection  of  Writing. 

Sec.J,331.  Existing  suits,  Inspection  and  copy,  of  book",  papers  and  docu-     0 
ments,  how  obtained. 


334. 
335. 
336. 
337. 
338. 


ANALYSIS.  xxxiii 

CHAPTER  VI. 

Examination  of  Parties. 

Sec.  332.  Action  for  discovery  abolished. 

333.  Existing  suits ;  a  party  may  examine  his  adversary  as  a  witness. 
Such  examination  also  allowed  before  ferial. 
Party  how  compelled  to  attend. 
Testimony  of  party  may  be  rebutted. 
Effect  of  refusal  to  testify. 

Testimony  of  a  party  not  responsive  to  the  inquir- 
ies, may  be  rebutted  by  the  oath  of  the  party  calling  him. 

339.  Existing  suits ;  Persons  for  whom  action  is  brought  or  defended 

may  be  examined. 

340.  Existing  suits ;  Examination  of  co-plaintiff  or  co-defendant. 

341.  Husband  and  wife,  witnesses. 

CHAPTER  VII. 

Examination  of  Witnesses. 

Sec.  342.  Existing  suits ;  Interest  not  to  exclude  a  witness. 

343.  Existing  suits ;  parties  to  actions  and  special  proceedings  may  be 
examined  as  witnesses  on  their  own  behalf,  except  in  certain 
cases. 

CHAPTER   VIII. 
Motions  and  Orders. 

Sec.  344.  Definition  of  an  order. 

345.  Definition  of  a  motion.     Motions  how  and  where  made,  Stay  of 

proceedings,  compelling  parties  to  testify,  Decision  on  motion. 

346.  Notice  of  motion. 

CAHPTER  IX. 
Entitling  Affidavits. 

Sec.  347.  Existing  suits ;  affidavits  defectively  entitled,  valid. 

CHAPTER  X. 

Computation  of  Time. 

Sec  348.  Time,  how  computed. 

CHAPTER  XI. 
Notes  and  Filing  and  Service  of  Papers. 

Sec  340.  Existing  suits.    Notice,  &c,  how  served;  subpoena  for  witnesses 

350.  Existing  suits ;  service  by  mail. 

351.  Existing  suits  ;  service  by  mail. 

352.  Existing  suits  ;  double  time  when  served  by  mail. 

353.  When  this  chapter  does  not  apply. 

C 


xxxiv  ANALYSIS. 

CHAPTER  XII. 

Duty  of  Sheriffs  and  Coroners. 

Sec.  354.  Duty  of  sheriff  and  coroner  in  serving  or  executing  process,[and 
how  enforced  ;  may  return  process  by  mail. 

CHAPTER  XIII. 

Accountability  of  Guardians. 

Sec.  355.  Guardian  not  to  receive  property  until  security  given. 
CHAPTER  XIV. 
Powers   of  Referees. 
Sec.  356.  Powers  of  referees. 

CHAPTER  XV. 
Miscellaneous  Provisions. 

Sec.  357.  Papers  lost  or  withheld,  how  supplied. 

358.  Where  undertaking  to  be  filed. 

359.  Time  for  publication  of  notices,  how  computed,  how  improved. 

360.  Laws  of  other  States  and  governments. 


TITLE  XV.      • 

ACTIONS   IN    PARTICULAR   CASES. 

CHAPTER  I. 

Actions  against  Foreign  Corporation. 

Sec.  361.  Where  and  by  whom  brought. 

CHAPTER  II. 

Actions  in  place  of  scire  facias,  quo  warranto,  and  of  informations  in 
the  nature  of  quo  warranto. 

Sec.  362.  Scire  facias  and  quo  warranto  abolished  and  this  chapter  sub- 
stituted. 

363.  Action  may  be  brought  by  Attorney-General  to  vacate  a  charter, 

by  direction  of  the  Legislature. 

364.  Action  to  annul  a  corporation,  when  and  how  brought  by  Attor- 

ney-General, by  leave  of  the  Supreme  Court. 


ANALYSIS.  xxxv 

Sec.  365.  Leave  how  obtained. 

366.  Action  upon  information  or  complaint  of  course. 

367.  Action,  when  and  how  brought  to  vacate  letters  patent. 

368.  Relator,  when  to  be  joined  as  plantiff. 

369.  Complaint,  and  arrest  of  defendant,  in  action  for^usurping  an 

office. 

370.  Judgment  in  such  actions. 

371.  Assumption  of  office,  &c,  by  relator,  when  judgment  isjn  his 

favor. 

372.  Proceedings  against  defendant,  on  refusal  to  deliver  books'or 

papers. 

373.  Damages,  how  recovered. 

374.  One  action  against  several  persons  claiming  office  or  franchise. 

375.  Penalty  for  usurping  office  or  franchise ;  how  awarded. 

376.  Judgment  of  forfeiture  against  a  corporation. 

377.  Costs  against  a  corporation,  or  persons  claiming  to.be  such,- how 

collected. 

378.  Restraining  corporation,  and  appointment  of  receiver. 

379.  Copy  of  judgment-roll  against  corporation,  where  to  be  filed. 

380.  Entry  of  judgment  relating  to  letters  patent.  ' 

381.  Actions  for  forfeiture  of  property  to  the  State. 

CHAPTER  III. 
Action  for  the  Partition  of  Real  Property,*&c. 

Sec  382.  Provisions  of  the  Revised  Code  applicable  to  actions  for  partition. 
CHAPTER  IV. 
Actions  for  Waste  and  Nuisance. 

Sec  383.  Action  of  waste  abolished.     Waste  how  remediable. 

384.  Provisions  of  Revised  Code  applicable  to  action  for  waste  under 

this  act. 

385.  When  judgment  of  forfeiture  and  eviction  to  be  given. 

386.  Writ  of  nuisance  abolished. 

387.  Remedy  for  injuries  heretofore  remediable  by  writ  of  nuisance. 


TITLE  XVI. 

General  Provisions. 

Sec.  S88.  Definition  of  "  real  property." 

389.  Definition  of  "personal  property." 

390.  Definition  of  "property." 

391.  Rule  of  construction. 


xxxvi  ANALYSIS. 

Sec.  392.  Statutory  provisions  inconsistent  with  this  act  repealed. 
393.  Rules  and  practice  inconsistent  with  this  act  abrogated. 

894.  Judges  of  Supreme  Court  shall  make  rules  of  practice. 

895.  Judges  of  Superior  Courts  to  suggest  rules. 

396.  If  Judge'of  a  Superior  Court  not  present,  Court  to  be  adjourn- 
ed, when. 

397.J|If  trial  for  felony  in  progress  at  expiration  of  a  term,  term  to  be 
prolonged. 

398.  Pleadings,  &c,  how  written. 

399.  Judges  of  Superior  Courts  to  issue  writs  of  habeas  corpus. 


TITLE  XVII. 

Regulations  Respecting  Existing  Suits. 

Sec."400.  Clerk  of  Superior  Court  to  transfer  existing  suits  in  which  no 
final  judgment. 

401.  Suits  not  transferred  to  abate. 

402.  If  transferred  how  proceeded  with. 

403.  Existing  judgments  not  dormant,  may  be  transferred. 

404.  Dormant  judgments,  how  revived. 

405.  Actions  to  recover  debts,  embraced  in  stay  law. 

406.  Executions  levied  on  personal  property. 

407.  Executions  satisfied. 

408.  Executions  not  levied  at  all,  or  levied  on  real  property. 

409.  Executions  to  be  dccketed. 

410.  Penalty  on  Sheriff  for  failing  to  return. 

411.  Judgments  not  dormant,  when. 
412.^0rdinance  of  11th  March,  1868,  not  effected. 


TITLE  XVIII. 

OF   THE    SUPREME    COURT. 

Sec  413.  Jurisdiction  of  Supreme  Court. 

414.  Cases,  how  taken  to  Supreme  Court. 

415.  Claims  against  the  State. 

416.  Manner  of  prosecutirg  claims  against  the  State. 


ANADYSIS.  sxxvii 

TITLE  XIX. 

PROBATE    COtmTS. 

CHAPTER  I. 

Jurisdiction  and  Powers. 

Sec.  417.  Judges  of  probate. 

418.  Jurisdiction. 

419.  Disqualification  to  act. 

420.  "Waiver  of  disqualification. 

421.  Removal  of  proceedings. 

422.  Enumeration  of  powers. 

423.  Haw  party  may  appear. 

424.  Judge  of  Probate  not  to  act  as  Attorney. 

425.  Seals. 

426.  Files. 

427.  Records. 

428.  Books  to  be  furnished  by  Secretary  of  State,  and  to.be  indexed. 

CHAPTER  II. 
Probate  of  Deeds. 

Sec.  429.  How  made,  &c. 

430.  When  land  lies  in  two  or  more  counties. 

431.  Official  bonds. 

432.  When  Judge  of  probate  disqualified  to  act. 

CHAPTER  III. 
Jurisdiction  over  the  Estates  of  Deceased  Persons. 

434.  WhenProbate  Judge  has  jurisdiction   of  the  estate. 

435.  Probate   Jud^e  first   acquiring  jurisdiction,  to   have   exclusive 

jurisdiction. 

CHAPTER  IV. 
Probate  of  Wills. 

Sec.  435.  How  wills  admitted  to  probate. 

436.  Executor  not  incompetent  as  a  witness. 

437.  Proof  and  examinations  in  writing. 

438.  Probate,  how  far  conclusive. 
4£9.  Who  may  apply  for  probate. 

440.  Who  may  apply  when  executor  does  not. 

441.  What  to  be  shown  on  application. 

442.  Production  of  will  compelled  by  process. 


xxxviii  ANALYSIS. 

Sec.  443.  Will  made  without  the  State  ;  how  proved. 

444.  Will  of  citizen  or  subject  of  anoflier  country ;  how  allowed  and 

recorded  in  this  State. 

445.  Will  of  citizen  of  this  State  proved  elsewhere ;  how  proved  and 

recorded  here. 

446.  Caveat. 

447.  Trafiferred  to  Superior  Ccurt ;  when. 

448.  Order  to  suspend  proceedings. 

CHAPTER  V. 

Letters  Testamentary. 

Sec.  449.  Who  is  disqualified  to  serve  as  executor. 
450.  Executor  may  renounce. 
451.*  When  excutor  deemed  to  have  renounced. 
452.  Executor  under  disqualification  of  age  or  absence. 

CHAPTER   VI. 

Letters  of  Administration  with  the  Will  Annexed. 

SECr453.  To  be  granted;  when  and  to  whom. 

454.  Qualifications,  &c. 

455.  Will  of  testator  to  be  observed. 

CHAPTER   VII. 
Letters  of  Administration. 

Sec.  456.  To  whom  whom  granted. 

457.  Disqualification. 

458.  ^Joining  persons  not  entitled. 

459.  Renunciation  of  persons  having  prior  right. 

460.  Persons  having  prior  right  disqualified  or  absent. 

461.  What  must  be  shown  on  application. 

462.  Contested  administration. 

CHAPTER  VIII. 

Letters  of  Collectic  n. 

Sec.  463.  When  to  issue  and  to  whom. 
464.iQualification,  &c. 

465.  Authority,  &c. 

466.  Authority,  when  to  cease.  &c. 


ANALYSIS.  xxxix 

CHAPTER  IX. 
General  Provisions  Respecting  Executors. 

Sec.  467.  Oath,  &c. 

468.  Bond,  &c. 

469.  Revocation  of  letters  on  proof  of  will,  &c. 

470.  Revocation  on  ground  of  disqualification  or  default. 

471.  Letters,  how  issued  and  tested. 

CHAPTER  X. 
Guardian  and  Ward. 

Sec.*472.  Power  over  oiphan's  estates,  and  to  appoint  guardians. 

473.  Inquisition  of  Lunacy. 

474.  Proceedings  on  application  for  guardianship. 

475.  Letters  of  appointment. 

476.  Reference  to  sections  456,  467,  469. 

CHAPTER  XI. 

Accounting  by  Executors,  Administrators,  Collectors  and  Guardians, 
and  Auditing  by  Judge  of  Probate. 

Sec.  477.  Make  return  on  oath  ;  when. 

478.  Annual  accounts. 

479.  Failure  to  account. 

480.  Vouchers. 

481.  Final  accounts. 

CHAPTER  XII. 
Masters  and  Apprentices. 

Sec.  482.  Binding  to  be  by  indenture. 

483.  Remedy  thereon. 

484.  Who  may  be  apprenticed. 

485.  For  what  time  bound. 

486.  Duties  of  master. 

487.  Duty  of  Probate  Judge. 

488.  Apprentices,  how  compelled  to  serve. 
4S9.  Misconduct  of  masters. 

CHAPTER  XIII. 

Transfer  and  Appeal. 

Sec.  490.  Issues  of  fact  and  matters  of  law. 

491.  No  bond  required. 

492.  Appeals  when  taken  and  by  whom. 


xl  ANAEYSIS. 

CHAPTER  XIV. 
What  Laws  Repealed  and  Unrepealed. 

Sec.  493.  What  laws  repealed  and  unrepealed. 


TITLE  XX. 

THE    COURTS    OF   JUSTICES    OF   THE    PEACE. 

CHAPTER  I. 

Maimer  of  Commencing  Civil  Actions  in  Justice's  Courts. 

Sec.  494.  Laws  repealed. 

495.  Summons. 

496.  Summons,  by  whom  issued. 

497.  Service  and  return  of  summons. 

CHAPTER  II. 

Jurisdiction  and  Manner  of  Proceeding'. 

Sec.  498.  Jurisdiction. 

499.  Where  sum  demanded  exceeds  two  hundred  dollars. 
«*>00.  Answer  to  title. 

501.  Action  to  be  dismissed,  when. 

502.  Another  action  may  be  brought. 

503.  Docketing  Justice's  judgment. 

504.  Rules  of  proceeding  in  Justice's  Court. 

505.  Execution  ;  on  what,  and  from  what  time  a  lien. 

506.  Stay  of  execution ;  security. 

507.  Former  judgment. 

508.  Application  for  rehearing. 

509.  Justice's  judgment  removed  to  another  county ;  how. 
501.  Witnesses,  penalties,  &c. 

CHAPTER  III. 

Arrest  and  Bail. 

Sec  511.  Provisions  of  Code  of  Civil  Procedure  Applicable. 

512.  Arrest,  in  what  cases. 

513.  Order  for  arrest,  by  whom  made. 

514.  Affidavit  to  obtain  order. 

515.  To  what  actions  this  chapter  applies. 


ANALYSIS.  xli 

CHAPTER  IV. 

Attachment. 

Sec.  516.  Provisions  of  Code  of  Civil  Procedure  Applicable. 

CHAPTER  V. 

Jury  Trials  in  courts  of  Justice's  of  the  Peace. 

Sec.  517.  Jury  list  furnished  to  each  Justice. 

518.  Justice  to  keep  jury  bos. 

519.  Names  of  jurors  to  be  deposited  in  jury  box. 

520.  When  trial  by  jury  demanded  or  waived. 

521.  Jury  drawn  and  trial  postponed. 

522.  Summoning  of  the  jury, 

523.  The  jury  for  the  trial  of  the  cause. 

524.  Challenge. 

525.  What  names  to  be  be  returned  to  jury  box  or  destroyed. 

526.  Tales  jurors  may  be  summoned. 

527.  Jury  sworn  and  empannelled — verdict,  &c. 

528.  New  trial — appeal. 

520.  Less  than  six,  may  be  a  jury,  when. 

530.  Not  compelleed  to  serve  out  of  township. 

531.  Jurors  seiving  on  a  trial,  &c. 

532.  Deposit  of  jury  fees. 

533.  Adjournment  upon  return  of  the  jury. 

CHAPTER  VI. 

Appeal. 

Sec,  534.  Appeal,  execution. 

545.  Appeal,  when  to  be  taken. 

536.  Notice  of  appeal,  on  whom  served. 

537.  Return  to  the  appeal. 

538.  Defective  return. 

539.  On  return  to  the  appeal  wbat  to  be  done. 

540.  Appeal  on  what  heard. 

541.  Execution  of  the  judgment,  how  stayed; 

542.  Same,  undertaking  to  be  given. 

543.  Same,  delivery  and  service  of  the  order,  on  whom. 

544.  Restitution. 

545.  Costs  how  awarded. 


xlii  ANALYSIS. 

CHAPTER  VII. 
^General  Provisions  respecting  Justices  of  the  Peace. 

Sec.  546.  Within  what  time  to  qualify. 

547.  Removal  out  of  township  six  months  to  forfeit  office. 

548.  Resignation. 

549.  May  issue  process  and  try  causes,  where. 

550.  Office  under  the  United  States. 

551.  Punishment  on  conviction  of  infamous  crime,  &c. 

552.  Fifing  docket  with  clerks. 

553.  Delivery  of  unfilled  docket  to  successor. 

554.  Filing  and  delivery,  how  enforced. 


TITLE  XXI. 

FEES. 

Chapter  I. — General  Provisions. 

"        II. — Fees  of  Solicitors.  * 

III. — Fees  of  Clerks  of  the  Superior  Courts. 

1.  In  Civil  Actions. 

2.  In  Criminal  Actions. 
IV. — Fees  of  Registers  of  Deeds. 
V. — Fees  of  Sheriffs. 
VI. — Fees  of  Coroners. 
VII. — Fees  of  Justices  of  the  Peace. 
VIII. — Fees  of  Constables. 
IX. — Fees  of  Jurors. 
X. — Fees  and  Salaries  of  Clerks  of  the  Supreme  Court. 

CHAPTER  I. 

General  Provisions. 

Sec.  555.  Fees  of  officers,  by  whom,  and  how,  payable. 

556.  Copy  sheet  defined. 

557.  Fees  on  returns  to  Secretary  of  State. 

558.  Officers  to  make  returns  of  fees. 

559.  Clerks  to  furnish  blank  writs. 

560.  Who  to  pay  costs  in  criminal  actions. 

561.  Half  fees,  if  convict  insolvent. 

562.  How  fees  of  officers  received. 


ANALYSIS.  xliii 

CHAPTER  II. 
Fees  of  Solicitors. 


Sec.  563.  When  to  receive  fees salary. 

564.  Solicitors'  fees*— for  what. 

CHAPTER  III. 

The  fees  of  Clerks  of  the  Superior  Courts. 

Sec.  565.  What  fees  and  for  what. 

I.  In  Civil  Cases. 

II.  In  Criminal  Actions. 

CHAPTER  IV. 

Fees  of  Registers  of  Deeds. 

Sec.  566.  Specification. 

CHAPTER  V. 

Fees  of  Sheriffs. 

Sec.  567.  Specifica'iou. 

CHAPTER  VI. 

Fees  of  Coroners. 

Sec.  568.  Specification. 

CHAPTER  II. 

Fees  of  Justices  of  the  Peace. 

Sec.  569.  Specifications. 

CHAPTER  VIII. 

Fees  of  Constables. 

Sec.  570.  Like  those  of  the  sheriff. 

CHAPTER  IX. 

Fees  of  Jurors. 

Sec.  571.  Day  and  mileage. 

CHAPTER  X. 

Fees  ami  Salaries  of  the  Supreme  Court. 

Sec.  572.  To  remain  as  heretofore. 


xliv  ANALYSIS. 

TITLE  XXII. 

Of  the  printing  of  the  Code  of  Civil  Procedure. 

Sec.  573.  Code  as  printed  under  the  supervision  of  the  Commissioners-;. 
evidence  of  the  law. 
574.  Copies,  how  distributed. 


TITLE  XXIII. 
Ratification  of  Statntes  composing  this  Code* 

Sec.  575.  Date  ot  Ratification. 


Code  of  Civil  Procedure. 


THE 


Code  of   Civil  Procedure 

OF 

NORTH    CAROLINA. 


Whereas,  it  is  ordained  by  Section  1,  Article  IV  of  the 
Constitution  of  North  Carolina,  that : 

"  The  distinction  between  actions  at  law  and  suits  in  equity 
and  the  forms  of  all  such  actions  and  suits  shall  be  abolished, 
and  there  shall  be  in  this  State  but  one  form  of  action  for  the 
enforcement  or  protection  of  private  rights  or  the  redress  of 
private  wrongs,  which  shall  be  denominated  a  civil  action  ; 
and  every  action  prosecuted  by  the  people  of  the  State  as  a 
party  against  a  person  charged  with  a  public  offence  shall  be 
termed  a  criminal  action.  Feigned  issues  shaH  also  be  abol- 
ished, and  the  fact  at  issue  tried  by  order  of  court  before  a 
jury." 

The  General  Assembly  of  the  State  of  North  Carolina,  for 
the  purpose  of  carrying  into  effect  the  said  section,  and  regu- 
lating the  practice  and  procedure  in  civil  actions,  in  the  seve- 
ral courts  of  this  State,  do  enact  as  follows  : 

GENERAL   DEFINITIONS   AND   DIVISIONS. 
,1. — Remedies. 

Remedies  in  the  courts  of  justice  are  divided  into — 

1.  Actions. 

2.  Special  proceedings. 


2  THE  CODE  OF 

§?.— Actions. 

An  action  is  an  ordinary  proceeding  in  a  court  of  justice, 
by  which  a  party  prosecutes  another  party,  for  the  enforcement 
or  protection  of  a  right,  the  redress  or  prevention  of  a  wrong, 
or  the  punishment  of  a  public  offence. 

§3. — Special  Proceedings. 

Every  other  remedy  is  a  special  proceeding. 

§4. — Division  of  Actions. 

Actions  are  of  two  kinds  : 

1.  Civil. 

2.  Criminal. 

§5.— Criminal  Action. 
A  criminal  action  is, 

1.  An  action  prosecuted  by  the  State  as  a  party  against  a 
person  charged  with  a  public  oflFence,  for  the  punishment 
thereof. 

2.  An  action  prosecuted  by  the  State,  at  the  instance  of  an 
individual,  to  prevent  an  apprehended  crime  against  his  person 
or  property. 

§6.—  Civil  Action. 

Every  other  is  a  civil  action. 

§7. — Remedies  not  Merged. 

Where  the  violation  of  a  right  admits  both  of  a  civil  and 
criminal  remedy,  the  right  to  prosecute  the  one,  is  not  merged 
in  the  other. 


TITLE    I. 

GENERAL   PROVISIONS   IN   REGARD   TO   ACTIONS. 
§8. — To  what  actions  these  enactments  are  applicable. 

The  following  enactments  are  applicable  to : 

1.  Civil  actions,  which  at  the  approval,  by  the  government 
•of  the  United  States,  of  the  Constitution  adopted  by  a  Conven- 


CIVIL  PROCEDURE.  3 

tion  of  this  State,  on  the  sixteenth  day  of  March,  1868,  were 
pending  in  any  County  Court,  Superior  Court  of  law,  or 
Court  of  Equity,  of  this  State,  and  which  were  not  founded  on 
contract,  as  far  as  they  may  be,  according  to  the  stage  of  pro- 
gress of  the  action,  and  having  regard  to  its  subject  and  not 
to  its  form. 

2.  All  civil  actions  which  shall  be  commenced  after  the  rat- 
ification of  this  Act,  not  founded  on  a  contract  made  prior  to 
its  ratification. 

3.  All  civil  actions  commenced  prior  to  the  ratification  of  this 
Act,  or  which  shall  be  commenced  hereafter,  for  causes  of  action 
included  within  the  provisions  of  an  ordinance,  entitled  "An 
Ordinance  respecting  the  jurisdiction  of  the  courts  of  this  State,'' 
ratified  on  the  fourteenth  day  of  March  1868,  shall  be  governed 
in  respect  to  the  practice  and  procedure  therein,  by  the  provisions 
of  that  ordinance,  and  by  the  existing  laws,  as  far  as  they  may 
be,  except  as  to  form. — [See  Appendix.] 

4.  All  actions  commenced  prior  to  the  ratification  of  this 
Act,  or  which  shall  be  hereafter  commenced,  founded  on  a  con- 
tract made  prior  to  the  ratification  of  this  Act,  and  not  em- 
braced in  the  ordinance  above-mentioned  shall  be  governed  in 
respect  to  the  practice  and  procedure  therein,  up  to,  and  in- 
cluding the  judgment,  by  the  laws  existing  prior  to  the  ratifi- 
cation of  this  Act,  as  near  as  may  be,  and  the  practice  in  such 
actions  subsequent  to  judgment,  shall  be  governed  by  the  en- 
actments of  this  Act. 

<?9. — Definition  of  Court— To  mean  Clerk,  when. 

In  those  of  the  following  enactments,  which  confer  juris- 
diction or  power,  or  impose  duties,  when  the  words  Superior 
Court,  or  "  Court,"  in  reference  to  a  Superior  Court  are  used, 
they  mean  the  Clerk  of  the  Superior  Court,  unless  otherwise 
specially  stated,  or  unless  reference  is  made  to  a  regular  term 
of  the  Court,  in  which  cases  the  Judge  of  the  Court  alone,  is 
meant. 


4  THE  CODE  OF 

TITLE    II. 

SUPERIOR    COURTS. 

§10.— Original  Civil  Jurisdiction  of  the  Superior  Courts. 

The  Superior  Courts  shall  have  exclusive  original  jurisdic- 
tion of  all  civil  actions,  whereof  exclusive  original  jurisdiction 
is  not  given  to  some  other  Court.     (Const.  Art.  IV,  Sect.  15.) 

§11.— Terms  of  the  several  Superior  Courts. 

The  terms  of  the  several  Superior  Courts,  of  this  State,  shall 
begin  in  each  year,  at  the  times  herein  stated,  and  shall  con- 
tinue to  be  held  for  two  weeks  (Sundays  and  legal  holidays 
excepted)  unless  the  business  be  sooner  disposed  of. 

FIRST  JUDICIAL   DISTRICT. 

Bertie  County,  on  the  first  Monday  in  March  and  October- 
Hertford  County,  on  the  third  Monday  in  March  and  October. 
Gates  County,  on  the  fourth  Monday  after  the  first  Monday 
in  March  and  October. 

Chowan  County,  on  the  sixth  Monday  after  the  first  Monday 
in  March  and  October. 

Perquimans  County,  on  the  eighth  Monday  after  the  first 
Monday  in  March  and  October. 

Pasquotank  County,  on  the  tenth  Monday  after  the  first 
Monday  in  March  and  October. 

Camden  County,  on  the  twelfth  Monday  after  the  first  Mon- 
day in  March  and  October. 

Currituck  County,  on  the  fourteenth  Monday  after  the  first 
Monday  in  March  and  October. 

SECOND   JUDICIAL   DISTRICT. 

Tyrell  County,  on  the  first  Monday  in  September  and  Feb- 
ruary. 

Washington  County,  on  the  third  Monday  in  September  and 
February. 

Beaufort  County,  on  the  sixth  Monday  after  the  third 
Monday  in  September  and  February. 


CIVIL  PROCEDURE.  5 

Pitt  County,  on  the  eighth  Monday  after  the  third  Monday 
in  September  and  February. 

Edgecombe  County,  on  the  tenth  Monday  after  the  third 
Mpnday  in  September  and  February. 

THIRD   JUDICIAL   DISTRICT. 

Wayne  County,  on  the  first  Monday  in  September  and 
February. 

Jones  County,  on  the  third  Monday  in  September  and 
February. 

Onslow  County,  on  the  first  Monday  after  the  fourth  Mon- 
day in  September  and  February. 

Craven  County,  on  the  third  Monday  after  the  fourth  Mon- 
day in  September  and  February. 

Lenoir  County,  on  the  fifth  Monday  after  the  fourth  Mon- 
day in  September  and  February. 

Greene  County,  on  the  seventh  Monday  after  the  fourth 
Monday  in  September  and  February. 

Carteret  County,  on  the  ninth  Monday  after  the  fourth 
Monday  in  September  and  February. 

Wilson  County,  on  the  eleventh  Monday  after  the  fourth 
Monday  in  September  and  February. 

FOURTH   JUDICIAL   DISTRICT. 

Robeson  County,  on  the  fourth  Monday  in  August  and 
February. 

Bladen  County,  on  the  second  Monday  after  the  fourth 
Monday  in  August  and  February. 

Columbus  County,  on  the  fourth  Monday  after  the  fourth 
Monday  in  August  and  February. 

Brunswick  County,  on  the  sixth  Monday  after  the  fourth 
Monday  in  August  and  February. 

New  Hanover  County,  on  the  eighth  Monday  after  the 
fourth  Monday  in  August  and  February. 

Sampson  County,  on  the  tenth  Monday  after  the  fourth 
Monday  in  August  and  February. 

Duplin  County,  on  the  twelfth  Monday  after  the  fourth 
Monday  in  August  and  February. 


6  THE  CODE  OF 

Martin  County,  on  the  second  Monday  after  the  third  Moa 
day  in  September  and  February. 

Hyde  County,  on  the  fourth  Monday  after  the  third  Mon- 
day in  September  and  February. 

FIFTH   JUDICIAL   DISTRICT. 

Harnett  County,  on  the  second  Monday  in  August  and 
February. 

Moore  County,  on  the  second  Monday  after  the  second 
Monday  in  August  and  February. 

Montgomery  County,  on  the  fourth  Monday  after  the  second- 
Monday  in  August  and  February. 

Stanly  County,  on  the  sixth  Monday  after  the  second  Mon- 
day in  August  and  February. 

Union  County,  on  the  eighth  Monday  after  the  second 
Monday  in  August  and  February. 

Anson  County,  on  the  tenth  Monday  after  the  second  Mon- 
day in  August  and  February. 

Richmond  County,  on  the  twelfth  Monday  after  the  second 
Monday  in  August  and  February. 

Cumberland  County,  on  the  fourteenth  Monday  after  the 
second  Monday  in  August  and  February. 

SIXTH   JUDICIAL   DISTRICT. 

Granville  County,  on  the '  second  Monday  in  August  and 
February. 

Warren  County  on  the  second  Monday  after  the  second 
Monday  in  August  and  February. 

Franklin  County,  on  the  fourth  Monday  after  the  second 
Monday  in  August  and  February. 

Johnston  County,  on  the  sixth  Monday  after  the  second 
Monday  in  August  and  February. 

Wake  County,  on  the  eighth  Monday  after  the  second  Mon- 
day in  August  February. 

Nash  County,  on  the  tenth  Monday  after  the  second  Monday 
in  August  and  February. 

Halifax  County,  on  the  twelfth  Monday  after  the  second 
Monday  in  August  and  February. 


CIVIL  PROCEDURE.  7 

Northampton  County,  on  the  fourteenth  Monday  after  the 
second  Monday  in  August  and  February. 

SEVENTH   JUDICIAL   DISTRICT. 

Guilford  County,  on  the  first  Monday  in  March  and  Sep- 
tember. 

Rockingham  County,  on  the  second  Monday  after  the  first 
Monday  in  March  and  September. 

Caswell  Comity,  on  the  fourth  Monday  after  the  first  Mon- 
day in  March  and  September. 

Person  County,  on  the  sixth  Monday  after  the  first  Monday 
in  March  and  September. 

Orange  County,  on  the  eighth  Monday  after  the  first  Monday 
in  March  and  September. 

Chatham  County,  on  the  tenth  Monday  after  the  first  Monday 
in  March  and  September. 

Randolph  County,  on  the  twelfth  Monday  after  the  first 
Monday  in  March  and  September. 

Alamance  County,  on  the  fourteenth  Monday  after  the  first 
Monday  in  March  and  September. 

EIGHTH   JUDICIAL   DISTRICT- 

Davie  County,  on  the  first  Monday  in  April  and  September. 

Rowan  County,  on  the  third  Monday  in  April  and  Sep- 
tember. 

Davidson  County,  on  the  second  Monday  after  the  third 
Monday  in  April  and  September. 

Forsyth  County,  on  the  fourth  Monday  after  the  third 
Monday  in  April  and  September. 

Stokes  County,  on  the  sixth  Monday  after  the  third  Monday 
in  April  and  September. 

Surry  County,  on  the  eighth  Monday  after  the  third  Monday 
in  April  and  September. 

Yadkin  County,  on  the  tenth  Monday  after  the  third  Monday 
in  April  and  September. 

NINTH   JUDICIAL   DISTRICT. 

Polk  County,  on  the  first  Monday  in  March  and  September. 


8  THE  CODE  OF 

Rutherford  County,  on  the  third  Monday  in  March  and 
September. 

Cleaveland  County,  on  the  second  Monday  after  the  third 
Monday  in  March  and  September. 

Lincoln  County,  on  the  fourth  Monday  after  the  third  Mon- 
day in  March  and  September. 

Gaston  County,  on  the  sixth  Monday  after  the  third  Monday 
in  March  and  September. 

Mecklenburg  County,  on  the  eighth  Monday  after  the  third 
Monday  in  March  and  September. 

Cabarrus  County,  on  the  tenth  Monday  after  the  third  Mon- 
day in  March  and  September. 

TENTH   JUDICIAL   DISTRICT. 

Catawba  County,  on  the  first  Monday  in  March  and  Sep- 
tember. 

Alexander  County,  on  the  third  Monday  in  March  and  Sep- 
tember. 

Iredell  County,  on  the  second  Monday  after  the  third  Mon- 
day in  March  and  September. 

Wilkes  County,  on  the  fourth  Monday  after  the  third  Mon- 
day in  March  and  September. 

Caldwell  County,  on  the  sixth  Monday  after  the  third  Mon- 
day in  March  and  September. 

Burke  County,  on  the  eighth  Monday  after  the  third  Mon- 
day in  March  and  September. 

McDowell  County,  on  the  tenth  Monday  after  the  third 
Monday  in  March  and  September. 

ELEVENTH   JUDICIAL   DISTRICT. 

Alleghany  County,  on  the  first  Monday  in  April  and  Sep- 
tember. 

Ashe  County,  on  the  third  Monday  in  April  and  September. 

Watauga  County,  on  the  second  Monday  after  the  third 
Monday  in  April  and  September. 

Mitchell  County,  on  the  fourth  Monday  after  the  third  Mon- 
day in  April  and  September. 


CIVIL  PROCEDURE.  9 

Yancey  County,  on  the  sixth  Monday  after  the  third  Mon- 
day in  April  and  September. 

Madison  County,  on  the  eighth  Monday  after  the  third  Mon- 
day in  April  and  September. 

Buncombe  County,  on  the  tenth  Monday  after  the  third 
Monday  in  April  and  September. 

TWELFTH    JUDICIAL    DISTRICT. 

Clay  County,  on  the  first  Monday  in  April  and  September. 

Cherokee  County,  on  the  third  Monday  in  April  and  Sep- 
tember. 

Macon  County,  on  the  second  Monday  after  the  third  Mon- 
day in  April  and  September. 

Jackson  County,  on  the  fourth  Monday  after  the  third 
Monday  in  April  and  September. 

Haywood  County,  on  the  sixth  Monday  after  the  third 
Monday  in  April  and  September. 

Transylvania  County,  on  the  eighth  Monday  after  the  third 
Monday  in  April  and  September. 

Henderson  County,  on  the  tenth  Monday  after  the  third 
Monday  in  April  and  September. 


TITLE    III. 

GENERAL   PROVISIONS   AS   TO    CIVIL   ACTIONS. 

§12.— Forms  of  Civil  Actions — Distinction  between  Actions  at  Law  and  Suits 
in  Equity  abolished. 

The  distinction  between  actions  at  law  and  suits  in  equity, 
and  the  forms  of  all  such  actions  and  suits,  heretofore  exist- 
ing, are  abolished  ;  and  there  shall  be,  in  this  State,  here- 
after, but  one  form  of  action,  for  the  enforcement  or  protec- 
tion of  private  rights  and  the  redress  of  private  wrongs, 
which  shall  be  denominated  a  civil  action.  (Const.  Art.  IV. 
Sec.  1.) 


10  THE  CODE  OF 

i  13.— Parties  designated— Plaintiff  and  Defendant. 

In  such  action,  the  party  complaining  shall  be  known  as  the 
plaintiff,  and  the  adverse  party  as  the  defendant. 

§14. — Actions  on  Judgments — When  they  may  be  brought. 

No  action  shall  be  brought  upon  a  judgment  rendered  in  a 
any  court  of  this  State,  which  shall  be  rendered  after  the 
ratification  of  this  act,  except  a  court  of  a  Justice  of  the 
Peace,  between  the  same  parties,  without  the  leave  of  the 
Judge  of  the  court,  either  in  or  out  of  term,  for  good  cause 
shown,  on  notice  to  the  adverse  party. 

§15. — Feigned  issues  abolished. 

Feigned  issues  are  abolished ;  and  instead  thereof,  in  the 
cases  where  the  power  now  exists  to  order  a  feigned  issue, 
or  when  a  question  of  fact  not  put  in  issue  by  the  pleadings, 
is  to  be  tried  by  a  jury,  an  order  for  the  trial  may  be  made, 
by  the  Judge,  stating  distinctly  and  plainly  the  question  of 
fact  to  be  tried  ;  and  such  order  shall  be  the  only  authority 
necessary  for  a  trial. 


TITLE    IY. 


LIMITATION    OF    ACTIONS. 

Chapter  I.      Actions  in  General. 

"       II.    Actions  for  the  recovery  of  Real  Property. 

"       III.  Actions  for  the  recovery  of  Property  other  than  Real. 

"       IV.    General  provisions  as  to  the  Commencement  of  Action. 


CHAPTER  I. 

ACTIONS   IN   GENERAL. 
§16. — Time  of  commencing  Actions  in  General. 

The  provisions  contained  in  chapter  sixty-five  of  the  Re- 
vised Code,  entitled  "  Limitations,"  are  repealed,  and  the  pro- 
visions of  this  title  are  substituted.  This  title  shall  not 
extend  to  actions  already  commenced,  or  to  cases  where  the 


CIVIL  PROCEDURE.  11 

right  of  action  has  already  accrued,  but  the  statutes  in  force 
previous  to  the  ratification  of  this  act  shall  be  applicable  to 
such  cases ;  and  in  cases  where  the  right  of  action  has  already 
accrued,  but  the  action  has  not  been  commenced,  the  said 
statutes  shall  be  applied  according  to  the  subject-matter  of  the 
action,  and  without  regard  to  the  form. 

§17. — Period  of  Limitation — Objection  mnst  be  taken  by  answer. 

Civil  actions  can  only  be  commenced  within  the  periods  pre- 
scribed in  this  title,  after  the  cause  of  action  shall  have  accrued, 
except  where,  in  special  cases,  a  different  limitation  is  pre- 
scribed by  statute.  But  the  objection  that  the  action  was  not 
commenced  within  the  time  limited,  can  only  be  taken  by  an- 
swer. 

CHAPTER  II. 

ACTIONS  FOR  THE  RECOVERY  OF  REAL  PROPERTY — TIME  OF  COM- 
MENCING. 

§18. — When  the  State  will  not  sne;    Thirty   years  possession;  Twenty-one 
one  years  possession  under  colorable  title. 

The  State  will  not  sue  any  person  for,  or  in  respect  of,  any 
real  property,  or  the  issues  or  profits  thereof,  by  reason  of  the 
right  or  title  of  the  State  to  the  same ; 

1.  When  the  person  in  possession  thereof,  or  those  under 
whom  he  claims,  shall  have  been  in  the  adverse  possession 
thereof  for  thirty  years,  such  possession  having  been  ascertain- 
ed and  identified  under  known  and  visible  lines  or  boundaries ; 
and  such  possession,  so  held,  shall  give  a  title  in  fee  to  the  pos- 
sessor. 

2.  When  the  person  in  possession  thereof,  or  those  under 
whom  he  claims,  shall  have  been  in  possession  under  colorable 
title  for  twenty-one  years,  such  possession  having  been  ascer- 
tained and  identified  under  known  and  visible  lines  or  bound- 
aries. 

§19. — Snch  possession  valid  against  claimants  nnder  the  State. 

All  such  possession  as  is  described  in  the  preceding  section, 
under  such  title  as  is  therein  described,  is  hereby  ratified  and 


12  THE  CODE  OF 

•confirmed,  and  declared  to  be  a  good  and  legal  bar  against 
the  entry  or  suit  of  any  person  under  the  right  or  claim  of  the 
State. 


$20. — When  persons  having  Title  mnst  sue. 

"When  the  person  in  possession  of  any  real  property,  or  those 
under  whom  he  claims,  shall  have  been  possessed  of  the  same, 
under  known  and  visible  lines  and  boundaries,  and  under  col- 
orable title  for  seven  years,  no  entry  shall  be  made  or  action 
sustained  against  such  possessor,  by  any  person  having  any 
right  or  title  to  the  same,  except  during  the  seven  years  next, 
after  his  right  or  title  shall  have  descended  or  accrued,  who  in 
default  of  sueing  within  the  time  aforesaid,  shall  be  excluded 
from  any  claim  thereafter  to  be  made ;  and-  such  possession,  so 
held,  shall  be  a  perpetual  bar  against  all  persons ;  subject  to 
the  qualifications  in  sections  twenty-eight  and  twenty-nine  of 
this  title. 

$21, — Proviso  in  case  of  Judgment  for  Plaintiff  reversed^  &c. 

If  in  any  action  for  real  property,  the  plaintiff  be  non-suited, 
or  judgment  be  given  for  him,  and  the  same  be  reversed  for 
error,  or  a  verdict  pass  for  the  plaintiff,  and  judgment  thereon 
be  arrested,  then  in  any  such  case,  the  plaintiff  may  commence 
a  new  action  from  time  to  time,  within  one  year  after  non-suit, 
judgment  reversed  or  stayed  as  aforesaid,  notwithstanding  the 
time  limited  in  the  foregoing  section  (twenty)  for  bringing 
such  action  as  may  have  expired,  if  the  action  first  brought, 
was  commenced  within  the  time  above  prescribed  for  bringing 
such  actions. 

$22. — Seizure  within  twenty  years  when  necessary. 

No  action  for  the  recovery  of  real  property ,  or  the  possession 
thereof,  shall  be  maintained,  unless  it  appear  that  the  plaintiff, 
or  those  under  whom  he  claims,  was  seized  or  possessed  of  the 
premises  in  question  within  twenty  years  before  the  commence- 
ment of  such  action ;  subject  to  the  qualifications  in  sections 
twenty-nine  and  thirty. 


CIVIL  PROCEDURE.  13 

§23. — Wben  adverse  possession  for  twenty  years. 

No  action  for  the  recovery  of  real  property,  or  the  posses- 
sion thereof,  or  the  issues  and  profits  thereof,  shall  be  main- 
tained when  the  person  in  possession  thereof,  or  the  defendant 
in  such  action,  or  those  under  whom  he  claims  shall  have  pos- 
sessed such  real  property  under  known  and  visible  lines  and 
boundaries  adversely  to  all  other  persons  for  twenty  years ; 
and  such  possession,  so  held,  shall  give  a  title  in  fee  to  the  pos- 
sessor, in  such  property,  against  all  persons  not  under  disability. 

§24, — Action  after  Entry. 

No  entry  upon  real  estate  shall  be  deemed  sufficient  or  valid, 
as  a  claim,  unless  an  action  be  commenced  thereupon,  within 
one  year  after  the  making  of  such  entry,  and  within  the  time 
prescribed  in  this  title. 

§25, — Possession  presumed — Occupation  when  deemed  under  legal  Title. 

In  every  action  for  the  recovery  of  real  property,  or  the 
possession  thereof,  or  damages  for  a  trespass  on  such  posses- 
sion, the  person  establishing  a  legal  title  to  the  premises,  shall 
be  presumed  to  have  been  possessed  thereof  within  the  time 
required  by  law ;  and  the  occupation  of  such  premises  by  any 
other  person  shall  be  deemed  to  have  been  under  and  in  sub- 
ordination to  the  legal  title,  unless  it  appears  that  such  premi- 
ses have  been  held  and  possessed  adversely  to  such  legal  title, 
for  the  time  prescribed  by  law  before  the  commencement  of 
such  action. 

§26.— Relation  of  Landlord  and  Tenant. 

Whenever  the  relation  of  landlord  and  tenant  shall  have 
existed  between  any  persons,  the  possession  of  the  tenant  shall 
be  deemed  the  possession  of  the  landlord,  until  the  expiration 
of  twenty  years  from  the  termination  of  the  tenancy ;  or  where 
there  has  been  no  written  lease,  until  the  expiration  of  twenty 
years  from  the  time  of  the  last  payment  of  rent,  notwithstand- 
ing that  such  tenant  may  have  acquired  another  title,  or  may 
have  claimed  to  hold  adversely  to  his  landlord.  But  such  pre- 
sumptions shall  not  be  made  after  the  periods  herein  limited. 


14  THE  CODE  OF 

§27, — Persons  nnder  disabilities. 

If  a  person  entitled  to  commence  any  action  for  the  recovery 
of  real  property,  or  to  make  an  entry  or  defence  founded  on 
the  title  to  real  property,  or  to  rents  and  services  out  of  the 
same,  be,  at  the  time  such  title  shall  descend  or  accrue,  either, 

1.  Within  the  age  of  twenty-one  years,  or 

2.  Insane,  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  upon 
conviction  of  a  criminal  offence,  or 

4.  A  married  woman ; 

Then  such  person  may,  notwithstanding  the  time  of  limita- 
tion prescribed  in  this  title  be  expired,  commence  his  action, 
or  make  his  entry,  within  three  years  next  after  full  age,  com- 
ing of  sound  mind,  enlargement  out  of  prison,  or  discoverture, 
and  at  no  time  thereafter. 
§28.— Cumulative  Disabilities, 

When  two  or  more  disabilities  shall  co-exist,  or  when  one 
disability  shall  supervene  an  existing  one,  the  period  prescribed 
within  which  on  action  may  be  brought,  shall  not  begin  to  run 
until  the  termination  of  latest  disability. 

§29.— Rail  Roads,  &e.,  not  barred. 

No  Rail  Road,  Plank  Road,  Turnpike  or  Canal  Company, 
shall  be  barred  of,  or  presumed  to  have  conveyed,  any  real 
estate,  right  of  way,  easement,  leasehold  or  other  interest  in 
the  soil  which  may  have  been  condemned,  or  otherwise  obtained 
for  its  use,  as  a  right  of  way,  depot,  station-house  or  place  of 
landing,  by  any  statute  of  limitation  or  by  occupation  of  the 
same  by  any  person  whatever. 


CHAPTER   III. 

ACTIONS   OTHER  THAN  FOE  THE  RECOVERY  OF  REAL  PROPERTY — 
TIME    OF    COMMENCING. 

§30. — Periods  of  Limitation  prescribed. 

The  periods  prescribed  for  the  commencement  of  actions, 
other  than  for  the  recovery  of  real  property,  shall  be  as  fol- 
lows : 


CIVIL  PROCEDURE.  15 

§31. — Ten  years. 

Within  ten  years. 

1.  An  action  upon  a  judgment  or  decree  of  any  Court  of  the 
United  States,  or  of  any  State  or  territory  thereof; 

2.  An  action  upon  a  sealed  instrument  not  negotiable, 
against  the  principals  thereto; 

3.  An  action  for  the  foreclosure  of  a  mortgage,  or  deed  in 
trust  for  creditors  with  a  power  of  sale,  of  real  property,  where 
the  mortgagor  or  grantor  has  been  in  possession  of  the  prop- 
erty, within  ten  years  after  the  forfeiture  of  the  mortgage,  or 
after  the  power  of  sale  became  absolute,  or  within  ten  years 
after  the  last  payment  on  the  same ; 

4.  An  action  for  the  redemption  of  a  mortgage,  where  the 
mortgagee  has  been  in  possession,  or  for  a  residuary  interest 
under  a  deed  in  trust  for  creditors,  where  the  trustee  or  those 
holding  under  him,  shall  have  been  in  possession ;  within  ten 

years  after  the  right  of  action  accrued. 

§32.— SeTcn  years. 

Within  seven  years. 

1.  On  a  judgment  rendered  by  a  Justice  of  the  Peace. 

2.  By  any  creditor  of  a  deceased  person  against  his  personal 
or  real  representative ;  within  seven  years  next  after  the  quali- 
fication of  the  executor  or  administrator  and  his  making  the 
advertisement  required  by  law,  for  creditors  of  the  deceased  to 
present  their  claims,  where  no  personal  service  of  such  notice 
in  writing  is  made  upon  the  creditor ;  and  a  creditor  thus  bar- 
red of  a  recovery  against  the  representative  of  any  principal 
debtor,  shall  also  be  barred  of  a  recovery  against  any  surety 
to  such  debt. 

33. — Six  years. 

Within  six  years. 

1.  An  action  upon  the  official  bond  of  any  public  officer. 

2.  An  action  against  any  executor,  administrator,  or  guar- 
<1  ian  on  his  official  bond,  within  six  years  after  the  auditing  of 
his  final  accounts  by  the  proper  officer,  and  the  filing  of  such 
audited  account  as  required  by  law. 

3.  An  action  for  injury  to  any  incorporeal  hereditament. 


16  THE  CODE  OF 

$34. — Three  years. 

Within  three  years. 

1.  An  action  upon  a  contract,  obligation,  or  liability  arising 
out  of  a  contract,  express  or  implied,  except  those  mentioned 
in  the  preceding  sections ; 

2.  An  action  upon  a  liability  created  by  statute,'  other  than 
a  penalty  or  forfeiture,  unless  some  other  time  be  mentioned  in 
the  statute,  creating  it ; 

3.  An  action  for  trespass  upon  real  property; 

4.  An  action  for  taking,  detaining,  converting,  or  injuring 
any  goods  or  chattels,  including  actions  for  their  specific  re- 
covery ; 

5.  An  action  for  criminal  conversation,  or  for  any  other  in- 
jury to  the  person  or  rights  of  another,  not  arising  on  contract 
and  not  hereinafter  enunciated ; 

6.  An  action  against  the  sureties  of  any  executor,  adminis- 
trator or  guardian,  on  the  official  bond  of  their  principal : 
within  three  years  after  the  breach  thereof  complained  of; 

7.  An  action  against  bail ;  within  three  years  after  judgment 
against  their  principal,  but  bail  may  discharge  themselves  by  a 
surrender  of  their  principal,  at  a/iy  time  before  final  judgment 
against  them ; 

8.  Fees  due  to  any  clerk,  sheriff  or  other  officer,  by  the 
judgment  of  a  Court ;  within  three  years  from  the  time  of  the 
judgment  rendered,  or  of  the  issuing  of  the  last  execution 
therefor ; 

9.  An  action  for  relief  on  the  ground  of  fraud,  in  cases 
which  heretofore  were  solely  cognizable  by  Courts  of  Equity, 
the  cause  of  action  in  such  case  not  to  be  deemed  to  have 
accrued  until  the  discovery  by  the  aggrieved  party,  of  the  facts 
constituting  fraud. 

$35.— One  year. 

1.  An  action  against  a  sheriff,  coroner,  or  constable,  or  other 
public  officer  for  a  trespass  under  color  of  his  office ; 

2.  An  action  upon  a  statute,  for  a  penalty  or  forfeiture, 
where  the  action  is  given  to  the  State  alone,  or  in  whole  or 


CIVIL  PROCEDURE.  17 

in  part,  to  the  party  grieved,  or  to  a  common  informer,  ex- 
cept where  the  statute  imposing  it  prescribes  a  different 
limitation ; 

3.  An  action  for  libel,  assault,  battery,  or  false  imprison- 
ment; 

4.  An  action  against  a  sheriff  or  other  officer,  for  the. 
escape  of  a  prisoner  arrested  or  imprisoned  on  civil  process; 

5.  An  action  by  a  creditor  of  any  deceased  person,  on 
whom  personal  notice  in  writing  to  present  his  claim  to  the 
personal  representative  of  the  deceased  has  been  served,  and 
who  has  failed  so  to  do,  within  one  year  after  the  service  of 
such  notice,  and  any  such  creditor,  barred  of  a  recovery 
against  the  personal  representative  of  a  principal  debtor, 
by  reason  of  such  default,  shall  also  be  barred  of  a  recoverv 
against  the  sureties  for  such  debt. 

436.— Six  Months. 

Within  six  months. 

1.  An  action  for  slander. 

•;  37.— Action  for  other  Relief. 

An  action  for  relief  not  herein  provided  for,  must  be  com- 
menced within  ten  years  after  the  cause  of  action  shall  have 
acciued. 

§38.— Actions  by  the  State;  Limitations  to  apply  to. 

The  limitations  prescribed  in  this  chapter  shall  apply  to 
civil  actions  brought  in  the  name  of  the  State,  or  for  its 
benefit,  in  the  same  manner  as  to  actions  by  or  for  the  ben- 
efit of  private  parties. 

>39.— Action  upon  an  account  Current,  when  cause  accrnps. 

In  an  action  brought  to  recover  a  balance  due  upon  a 
mutual,  open  and  current  account,  where  there-have  been 
reciprocal  demands  between  the  parties,  the  cause  of  action 
shall  be  deemed  to  have  accrued  from  the  time  of  the  latest 
item  proved  in  the  account  on  either  side. 

9 


18  THE  CODE  OF 

CHAPTER  III.  ' 

i  • 

GENERAL  PROVISIONS  AS  TO  THE  TIME  OF  COMMENCING  ACTIONS. 

$40. — When  action  deemed  commenced. 

An  action  is  commenced  as  to  each  defendant  when  the 
summons  is  issued  issued  against  him. 

441.— Exception;  Defendant  out  of  the  State. 

If  when  the  cause  of  action  accrue  against  any  person,  he 
shall  be  out  of  the  State,  such  action  may  be  commenced 
within  the  terms  herein  respectively  limited,  after  the  return 
of  such  person  into  this  State ;  and  if  after  such  cause  of 
action  shall  have  accrued,  such  person  shall  depart  from 
and  reside  out  of  this  State,  or  remain  continuously  absent 
therefrom  for  the  space  of  one  year  or  more,  the  time  of  his 
absence  shall  not  be  deemed  or  taken  as  any  part  of  the  time 
limited  for  the  commencement  of  such  action. 

442. — Exceptions;  Persons  under  Disabilities. 

If  a  person  entitled  to  bring  an  action  mentioned  in  the 
last  chapter,  except  for  a  penalty  or  forfeiture,  or  against  a 
sheriff  or  other  officer  for  an  escape,  be  at  the  time  the  cause 
of  action  accrued,  either, 

1.  Within  the  age  of  twenty-one  years;  or 

2.  Insane;  or 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution  under 
the  sentence  of  a  criminal  court  for  a  term  less  than  his 
natural  life;  or 

4.  A  married  woman; 

Then  such  person  may  bring  their  actions  within  the  times 
before  limited,  after  their  disabilities  shall  be  removed. 

§43.— Death  of  person  entitled,  before  limitation  expires. 

If  a  person  entitled  to  bring  an  action  die  before  the 
expiration  of  the  time  limited  for  the  commencement  thereof, 
and  the  cause  of  action  survive,  an  action  may  be  com- 
menced by  his  representatives  after  the  expiration  of  that 


CIVIL  PROCEDURE.  19 

time,  and  within  one  year  from  his  death.  If  a  person 
against  whom  an  action  may  be  brought  die  before  the 
expiration  of  the  time  limited  for  the  commencement  thereof, 
and  the  cause  of  action  survive,  an  action  may  be  com- 
menced against  his  executors  or  administrators  after  the 
expiration  of  that  time,  and  within  one  year  after  the  issuing 
of  letters  testamentary  or  of  administration. 

§14.— Actions  by  Aliens;  time  of  war  not  counted. 

When  a  person  shall  be  an  alien,  subject  or  citizen  of  a 
country,  at  war  with  the  United  States,  the  time  of  the  con- 
tinuance of  the  war  shall  not  be  part  of  the  period  limited 
for  the  commencement  of  the  action. 

§45.— Where  judgment  reversed  &c ;    Plaintiff'  may  commence  new 

action. 

If  an  action  shall  be  commenced  within  the  time  pre- 
scribed therefor,  and  the  plaintiff  be  non-suited,  or  a  judg- 
ment therein  be  reversed  on  appeal,  or  be  arrested,  the  plain- 
tiff, or  if  he  die  and  the  cause  of*  action  survive,  his  heirs  or 
representatives  may  commence  a  new  action  within  one 
year  after  such  non-suit,  reversal,  or  arrest  of  judgment. 

§46.— Time  of  Stay  by  Injunction.  &C,  not  counted. 

When  the  commencement  of  an  action  shall  be  stayed  by 
injunction  or  statutory  prohibition,  the  time  of  the  contin- 
uance of  the  injunction  or  prohibition  shall  not  be  part  of 
the  time  limited  for  the  commencement  of  the  action. 

$47.— Time    during  controversy  about    Probate  of  Will,    «Scc,    not 
counted. 

In  reckoning  time  when  pleaded  as  a  bar  to  suits,  that 
period  shall  not  be  counted,  which  elapses  during  any  con- 
troversy on  the  probate  of  a  will  or  granting  letters  of  ad- 
ministration, unless  there  be  an  administrator,  appointed 
during  the  pendency  of  thesuit,  and  it  be  provided  by  law, 
that  suit  may  be  brought  aga:'rist  him. 


20  THE  CODE  OF 

§48. — Disability  must  exist  wheii  the  right  of  action  accrued. 

No  person  shall  avail  himself  of  a  disability,  unless  it 
existed  when  his  right  of  action  accrued. 

§49. — Where  several  Biasbilities,  all  must  he  removed. 

Where  two  or  more  disabilities  shall  co-exist  at  the  time 
the  right  of  action  accrues,  the  limitation  shall  not  attach 
until  they  all  be  removed. 

§50.— Acknowledgment  h}r  partner,  &c,  after  dissolution. 

No  act,  admission  or  acknowledgment  by  any  partner 
after  the  dissolution  of  the  co-partnership,  or  by  any  of  the 
makers  of  a  promissory  note  or  bond  after  the  statute  of 
limitations  shall  have  barred  the  same,  shall  be  received  as 
evidence  to  repel  the  statute,  except  against  the  partner  or 
maker  of  the  promissory  note  or  bond,  doing  the  act,  or 
making  the  admission  or  acknowledgment. 

§51. — Acknowledgment  or  new  promise  must  be  in  writing-. 

No  acknowledgment  or  promise  shall  be  received  as  evi- 
dence of  a  new  or  continuing  contract,  whereby  to  take  the 
case  out  of  the  operation  of  this  title,  unless  the  same  be 
contained  in  some  writing  signed  by  the  party  to  be  charged 
thereby;  but  this  section  shall  not  alter  the  effect  of  any 
payment  of  principal  or  interest. 

§52. — Co-tenants;   when  some  barred,  and  others  not. 

In  actions  by  tenants  in  common  or  joint  tenants  of  per- 
sonal property  to  recover  the  same,  or  damages  for  the 
detention  of  or  injury  thereto,  and  any  of  them  shall  be 
barred  of  their  recovery  by  limitation  of  time,  the  rights  of 
the  other  shall  not  be  affected  thereby;  but  they  may 
recover  according  to  their  right  and  interest  notwith- 
standing such  bar. 

§53.— This  title  not  applicable  1©  bills,  &e.,  c!  corporations,  or  (o  biiiik 
noicst 

This  title  shall  not  affect  actions  to  enforce  the  payment 
of  bills,  notes  or  other  evidences  of  debt,  issued  by  moneyed 
corporations,  or  issued  or  put  in  circulation  as  money. 


CIVIL  PROCEDURE.  21 

§51 — Nor  to  actions  against  Directors,  &c,  of  3Ioneyed  Corporations  or 
Banking  Associations^  Limitation  in  such  cases  prescribed. 

This  title  shall  not  affect  actions  against  directors  or 
stockholders  of  any  moneyed  corporation,  or  banking  asso- 
ciation which  shall  hereafter  be  incorporated  by  or  under 
the  laws  of  this  State,  to  recover  a  penalty  or  forfeiture 
imposed,  or  to  enforce  a  liability  created  by  law;  but  such 
actions  must  be  brought  within  three  years  after  the  dis- 
covery by  the  aggrieved  party,  of  the  facts  upon  which  the 
penalty  or  forfeiture  attached,  or  the  liability  was  created. 


•     TITLE    Y. 

PARTIES    TO     CIVIL    ACTIONS. 

§55. — Action  to  be   by  party  in  interest.    Action  by  g  f  laud  held- 

adverse!}*. — Assignment  of  thisig  in  action. 

Every  action  must  be  prosecuted  in  the  name  of  the  real 
party  in  interest,  except  as  otherwise  provided  in  section 
fifty-seven;  but  this  section  shall  not  be  deemed  to 
authorize  the  assign mentof  a  thing  in  action  not  aris- 
ing out  of  contract.  But  an  action  may  be  maintained 
by  a  grantee  of  land  in  the  name  of  a  grantor,  or 
his  or  her  heirs  or  legal  representatives,  when  the  grant  or 
grants    are   void   by  reason   of  the  actual  po.;  of  a 

person  claiming  under  a.  title  adverse  to  that  of  the  grantor 
at  the  time  of  the  delivery  of  the  grant,  and  the  plaintiff 
shall  be  allowed  to  prove  the  facts  to  bring  the  case  within 
this  provision. 

In  the  case  of  an  assignment  of  a  thing  in  action,  the 
action  by  the  assignee  shall  be  without  prejudice  to  any 
set-off  or  other  defence  existing  at  the  time  of,  or  1 
notice  of,  the  assignment;  but  this  section  shall  not  apply 
to  a  negotiable  promissory  note  or  bill  of  exchange,  trans- 
ferred in  good  faith,  and  u\  I  consideration,  before  due. 


22  THE  CODE  OF 

§56. — Action  by,  and  against,  a  Married  Woman. 

When  a  married  woman  is  party,  her  husband  must  be 
joined  with  her  except  that, 

1.  When  the  action  concerns  her  separate  property  she 
may  sue  alone; 

2.  When  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone; 

And  in  no  case  need  she  prosecute  or  defend  by  a  guardian 
or  next  friend. 

§57.— Action  by  Executor,  Trustee,  &«. 

An  executor  or  admininistrator,  a  trustee  of  an  express 
trust,  or  a  person  expressly  authorized  by  statute,  may  sue, 
without  joining  with  him  the  person  for  whose  benefit  the 
action  is  prosecuted.  A  trustee  of  an  express  trust,  within 
the  meaning  of  this  section,  shall  be  construed  to  include  a 
person  with  whom  or  in  whose  name  a  contract  is  made  for 
the  benefit  of  another. 

^58.— Infant  to  appear  by  Guardian. 

When  an  infant  is  a  party,  he  must  appear,  by  guardian, 
who  may  be  a  testamentary  or  general  guardian,  appointed 
as  is  provided  by  law  for  the  appointment  of  such  guardians, 
or  a  guardian  for  the  prosecution  or  defence  of  the  par- 
ticular action,  appointed  by  the  court  in  which  the  action  is 
prosecuted. 

§59. — Appointment  of  Guardian  in  Parthalar  action. 

A  guardian  to  prosecute  or  defend  a  particular  action  in 
behalf  of  an  infant  shall  be  appointed  as  follows: 

1.  When  the  infant  is  plaintiff,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years;  or  if  under 
that  age,  upon  the  application  of  his  general  or  testamen- 
tary guardian,  if  he  has  any,  or  of  a  relative  or  friend  of  the 
infant:  if  made  by  a  relative  or  friend  of  an  infant,  notice 
thereof  must  be  first  given  to  such  guardian,  if  he  has  one; 
if  he  has  none,  then  to  the  person  with  whom  such  infant 
resides.  An  infant  plaintiff,  or  his  guardian,  must  give 
security  for  the  costs  of  the  defendant,  as  is  required  of 
plaintiffs. 


CIVIL  PROCEDURE.  23 

2.  When  the  infant  is  defendant,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years,  and  apply 
within  twenty  days  after  service  of  the  summons.  If  he  be 
under  the  age  of  fourteen,  or  neglect  so  to  apply,  then  upon 
the  application  of  any  other  party  to  the  action,  or  of  a 
relative  or  friend  of  the  infant,  after  notice  of  such  appli- 
cation being  first  given  to  the  general  or  testamentary 
guardian  of  such  infant,  it  he  has  one  within  this  State :  if 
he  has  none,  then  to  the  infant  himself,  if  over  fourteen 
years  of  age,  and  within  the  State ;  or  if  under  that  age  and 
within  the  State,  to  the  person  with  whom  such  infant 
resides. 

3.  And  in  actions  for  the  partition  of  realpioperty,  or  for 
the  foreclosure  of  a  mortgage  or  other  instrument,  when  an 
infant  defendant  resides  out  of  the  State,  or  is  temporarily 
absent  therefrom,  the  plaintiff  may  apply  to  the  court  in 
which  the  action  is  pending,  and  will  be  entitled  to  an  order 
designating  some  suitable  person  to  be  the  guardian  for  the 
infant-defendant  for  the  purpose  of  the  action,  unless  the 
infant-defendant  or  some  one  in  his  bohalf,  within  a  number 
of  days  after  the  service  of  a  copy  of  the  order,  which  num- 
ber of  days  shall  be  in  the  said  order  specified,  shall  pro- 
cure to  be  appointed  a  guardian  for  the  said  infant,  and  the 
court  shall  give  special  direction  in  the  order  for  the  man- 
ner of  the  service  thereof,  which  may  be  upon  the  infant. 

4.  Andin  case  an  infant-defendant  havingan  interest  in  the 
event  of  the  action,  shall  reside  in  any  State,  with  which 
there  shall  not  be  a  regular  communication  by  mail,  on  such 
facts  satisfactorily  appearing  to  the  Court,  the  Court  may 
appoint  a  guardian  ad  litem  for  such  absent  infant  party,  for 
the  purpose  of  protecting  the  right  of  such  infant  in  said 
action,  and  on  such  guardian  ad  litem,  process,  pleadings 
and  notices  may  be  served  in  the  like  manner  as  upon  a 
party  residing  in  this  State. 

§60.— Who  to  be  the  plaintiff. 

All  persons  having  an  interest  in  the  subject  of  the  action, 
and  in  obtaining  the  relief  demanded,  may  be  joined  as 
plaintiffs,  except  as  otherwise  provided  in  this  title. 


24    ■  THE  CODE  OF 

§61. — Wno  to  be  defendant. 

Any  person  may  be  made  a  defendant  who  has,  or  claims, 
an  interest  in  the  controversy  adverse  to  the  plaintiff,  or 
who  is  a  necessary  party  to  a  complete  determination  or  set- 
tlement of  the  questions  involved  therein;  and  in  an  action 
to  recover  the  possession  of  real  estate,  the  landlord  and 
tenant  thereof  may  be  joined  as  defendants;  and  any  person 
claiming  title  or  right  of  possession  to  real  estate,  may  be 
made  parties  plaintiff  or  defendant,  as  the  case  may  require^ 
to  any  such  action. 

§62. — Parties  to  be  joined,  &t. 

Of  the  parties  to  the  action,  those  who  are  united  in  inter- 
est must  be  joined  as  plaintiffs  or  defendants ;  but  if  the 
consent  of  any  one  who  should  have  been  joined  as  plaintiff 
cannot  be  obtained,  he  may  be  made  a  defendant,  the  reason 
thereof  being  stated  in  the  complaint ;  and  when  the  ques- 
tion is  one  of  a  common  or  general  interest  of  many  persons, 
or  where  the  parties  may  be  very  numerous,  and  it  may  be 
impracticable  to  bring  them  all  before  the  Court,  one  or 
more  may  sue  or  defend  for  the  benefit  of  the  whole. 

§83. — Parlies  to  bills  and  noles,  &c. 

Persons  severally  liable  upon  the  same  obligation  or 
instrument,  including  the  parties  to  bills  of  exchange  and 
promissory  notes,  may  all  or  any  of  them  be  included  in  the 
same  action  at  the  option  of  the  plaintiff. 

§64. — Exls^lag  salts.    Action  when  not  to  aba'e. 

1.  No  action  shall  abate  by  the  death,  marriage  or  other  dis- 
ability of  a  party,  or  by  the  transfer  of  any  interest  therein, 
if  the  cause  of  action  survive  or  continue.  In  case  of  death 
marriage  or  other  disability  of  a  party,  the  Court  on  motion 
at  any  time  within  one  year  thereafter,  or  afterwards  on  a 
supplemental  complaint,  may  allow  the  action  to  be  con- 
tinued by,  or  against,  his  representative  or  successor  in  inter- 
est. In  case  of  any  other  transfer  of  interest,  the  action 
shall  be  continued  in  the  name  of  the  original  party,  or  the 
Court  may  allow  the  person  to  whom  the  transfer  is  made,, 
to  be  substituted  in  the  action. 


CIVIL  PROCEDURE.  25 

2.  After  a  verdict  shall  be  rendered  in  any  action  for  a  wrong, 
such  action  shall  not  abate  by  the  death  of  any  party,  but 
the  cases  shall  proceed  thereafter  in  the  same  manner  as  in 
cases  where  the  cause  of  action  now  survives  by  law. 

3.  At  any  time  after  the  death,  marriage,  or  other  disability 
of  the  party  plaintiff,  the  Court  in  which  an  action  is  pend- 
ing, upon  notice  to  such  persons  as  it  may  direct,  and  upon 
application  of  any  person  aggrieved,  may  in  its  discretion, 
order  that  the  action  be  deemed  abated,  unless  the  same  be 
continued  by  the  proper  parties,  within  a  time  to  be  fixed 
by  the  Court,  not  less  than  six  months,  nor  exceeding  one 
year  from  the  granting  of  the  order. 

4.  The  provisionsof  this  section  shall  apply  as  well  to  actions 
existing  at  the  ratification  of  this  act,  as  to  those  commenced 
subsequently  thereto. 

§65.— Court  may  determine  controversy  and  interpleader. 

The  Court  either  between  the  terms,  or  at  a  regular  term, 
according  to  the  nature  of  the  controversy,  under  the  regu- 
lations contained  in  this  Act,  may  determine  any  controversy 
before  it,  when  it  can  be  done  without  prejudice  to  the  rights 
of  others,  or  by  saving  their  rights;  but  when  a  complete 
determination  of  the  controversy  cannot  be  had  without  the 
presence  of  other  parties,  the  Court  must  cause  them  to  be 
brought  in. 

And  when  in  an  action  for  the  recovery  of  real  or  personal 
property,  a  person  not  a  party  to  the  action,  but  having  an 
interest  in  the  subject  thereof,  makes  application  to  the  Court 
to  be  made  a  party,  it  may  order  him  to  be  brought  in  by 
the  proper  amendment, 

A  defendant  against  whom  an  action  is  pending  upon  a 
contract,  or  for  specific  real  or  personal  property,  may  at  any 
time  before  answer,  upon  affidavit,  that  a  person  not  a  parly 
to  the  action,  and  without  collusion  with  him,  makes  against 
him  a  demand  for  the  same  debt  or  property,  upon  due 
notice  to  such  person  and  the  adverse  party,  apply  to  the 
Court  for  an  order  to   substitute   such  person   in   his  place, 


26  THE  CODE  OF 

and  discharge  him  from  liability  to  either  party,  on  his 
depositing  in  Court  the  amount  of  the  debt,  or  delivering 
the  property  or  its  value,  to  such  person  as  the  Court  may 
direct;  and  the  Court  may,  in  its  discretion,  make  the  order. 


TITLE    VI. 

OF    THE    PLACE    OF    TRIAL    OF   CIVIL   ACTIONS. 

§66. — Actions  to  be  tried  where  sabjcct-niatter  situated. 

Actions  for  the  following  causes  must  be  tried  in  the 
county  in  which  the  subject  of  the  action,  or  some  part 
thereof,  is  situated,  subject  to  the  power  of  the  Court  to 
change  the  place  of  trial,  in  the  cases  provided  in  this  Code. 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or 
interest  therein,  or  for  the  determination  in  any  form,  of 
such  right  or  interest,  and  for  injuries  to  real  property ; 

2.  For  the  partition  of  real  property ; 

3.  For  the  foreclosure  of  a  mortgage  of  real  property; 

4.  For  the  recovery  of  personal  property  distrained  for 
any  cause. 

07. — Actions  to  be  tried  where  cause  of  action  arose. 

Actions  for  the  following  causes  must  be  tried  in  the 
county  where  the  cause,  or  some  part  thereof,  arose,  subject 
to  the  like  power  of  the  Court  to  change  the  place  of  trial, 
in  the  cases  provided  in  this  Code; 

1.  For  the  recovery  of  a  penalty  or  forfeiture,  imposed  by 
statute ;  except  that,  when  it  is  imposed  for  an  offence  com- 
mitted on  a  sound,  bay,  river  or  other  body  of  water  situated 
in  two  or  more  counties,  the  action  may  be  brought  in  any 
county  bordering  on  such  sound,  bay,  river  or  other  body  of 
water,  and  opposite  to  the  place  where  the  offence  was  com- 
mitted; 


CIVIL  PROCEDURE.  27 

2.  Against  a  public  officer  or  person  especially  appointed 
to  execute  his  duties,  for  an  act  done  by  him  by  virtue  of 
his  office ;  or  against  a  person  who  by  his  command,  or  in 
his  aid,  shall  do  anything  touching  the  duties  of  such  officer. 

§68.— Action,  to  be  tried  where  Defendant  resides. 

In  all  other  cases  the  action  shall  be  tried  in  the  County 
in  which  the  defendants,  or  any  of  them  shall  reside  at  the 
commencement  of  the  action;  or  if  none  of  the  defendants 
shall  reside  in  the  State,  then  in  the  County  in  which  the 
plaintiffs  or  any  of  them  shall  reside;  and  if  none  of  the  par- 
ties shall  reside  within  the  State,  then  the  same  may  be  tried 
in  any  county  which  the  plaintiff  shall  designate  in  his  sum- 
mons and  complaint,  subject  however,  to  the  power  of  the 
Court  to  change  the  place  of  trial,  in  the  cases  provided  by 
statute. 

f69.— Change   of  place   of  trial. 

If  the  County  designated  for  that  purpose  in  the  summons 
and  complaint  bo  not  the  proper  County,  the  action,  may, 
notwithstanding,  be  tried  therein,  unless  the  defendant, 
before  the  time  of  answering  expires,  demand  in  writing  that 
the  trial  be  had  in  the  proper  County,  and  the  place  of  trial 
be  thereupon  changed  by  consent  of  parties,  or  by  order  of 
the  Court,  as  is  provided  in  this  section. 

The  Court  may  change  the  place  of  trial  in  the  following 
cases: 

1.  When  the  County  designated  for  that  purpose  is  not 
the  proper  County. 

2.  When  the  convenience  of  witnesses  and  the  ends  of 
justice  would  be  promoted  by  the  change. 

When  the  place  of  trial  is  changed,  all  other  proceedings 
shall  be  had  in  the  County  to  which  the  place  of  trial  is 
changed,  unless  otherwise  provided  by  the  consent  of  the 
parties  in  writing  duly  filed,  or  order  of  Court;  and  the 
papers  shall  be  filed  or  transferred  accordingly. 


28  THE  CODE  OF 

TITLE    YII. 

OF  THE  MANNER  OF  COMMENCING  CIVIL  ACTIONS,    AND    THE    SERVICE    OF 
THE  SUMMONS. 

§70. — Maimer  of  commencing  civil  actions. 

Civil  actions  in  the  Superior  'Courts  of  this  State  shall  be 
commenced  by  the  issuing  of  a  summons. 

§71. — By  whom  issued,  &c. 

The  summons  shall  be  issued  by  a  Clerk  of  any  Superior 
Court  at  the  request  of  the  plaintiff;  but  before  issuing  it, 
the  Clerk  shall  require  of  the  plaintiff,  either  to  give  a  bond 
with  sufficient  sureties,  in  the  sum  of  two  hundred  dollars, 
with  the  condition  that  the  same  shall  be  void  if  the  plaintiff 
shall  pay  the  defendant  all  such  costs  as  the  defendant  shall 
recover  of  him  in  the  action;  or  to  deposit  a  like  sum  with 
him  as  a  security  to  the  defendant  for  such  costs,  and  in  case 
of  such  deposit  he  shall  give  to  the  plaintiff  and  to  the  defen- 
dant a  certificate  to  that  effect;  or  to  hie  with  him  a  written 
authority  from  some  Judge  of  a  Superior  Court  authorizing 
the  plaintiff  to  sue  as  a  pauper. 

§12.— Power  to  sue  as  ;\  pauper;  Slow  ©btai 

Any  Judge  of  the  Superior  Court  may  authorize  any 
person  to  sue  as  a  pauper  when  he  shall  exhibit  to  the  Judge 
a  certificate  from  some  licensed  attorney: 

1.  That  he  has  examined  the  ease  of  the  plaintiff,  and 
believes  that  he  ha  goo,d  and  meritorious  cause  of  action 
in  fact  and  law;  and, 

2.  That  he  will  prosecute  the  action  of  the  plaintiff  as  his 
attorney  and  counsel  without  any  fee  or  reward  whatever; 
and  when  it  shall  also  appear  to  the  Judge,  by  the  affidavit 
of  the  plaintiff  or  otherwise,  that  the  plaintiff  is  unable  to 
give  the  sureties  or  make  the  deposit  required. 

Whenever  any  pers<  n  i  hall  be  allowed  to  sue -as  a  pauper, 
no  officer  shall  require  of  him  any  fee,  and  he  shall  recover 
no  costs. 


CIVIL  PROCEDURE.  29 

^73. — Form  of  the  sammous. 

The  summons  shall  run  in  the  name  of  the  State,  be 
signed  by  the  Clerk  of  a  Superior  Court,  under  the  seal  of 
his  Court,  and  be  directed  to  the  sheriff  of  the  county  in 
which  the  defendant  resides  or  may  be  found,  or  in  case 
.such  sheriff  be  a  party  to,  or  interested  in,  the  action, 
it  may  be  directed  to  the  coroner  of  that  county,  or 
to  the  sheriff  of  any  adjoining-  county.  It  shall  com- 
mand the  officer  to  summon  the  defendant  to  appear  at  the 
office  of  the  Clerk  of  the  Superior  Court  for  some  certain 
county,  within  a  certain  number  of  days  after  the  service, 
exclusive  of  the  day  of  service,  to  answer  the  complaint  of 
the  plaintiff.     It  shall  be  dated  on  the  day  of  its  issue. 

j;}  i. — What  summons  to  eoataiih 

There  shall  also  be  inserted  in  the  summons,  a  notice  in 
substance  as  follows: 

1.  In  an  action  arising  on  contract  for  the  recovery  of 
money  only,  that  the  plaintiff  will  take  judgment  for  a  sum 
specified  therein,  if  the  defendant  shall  fail  to  answer  the 
complaint  within  the  time  specified. 

2.  In  other  actions,  that  if  the  defendant  shall  fail  to 
answer  the  complaint  within  the  time. specified,  the  plaintiff 
will  apply  to  the  Court  for  the  relief  demanded  in  the  com- 
plaint. The  Clerk  before  whom  the  defendant  shall  be  sum- 
moned to  appear,  shall  be  the  Clerk  of  the  Superior  Court  of 
the  county  in  which  it  is  provided  in  Title  VI,  that  the 
action  shall  be  tried. 

3.  The  number  of  days  within  which  the  defendant  is  sum- 
moned to  appear,  shall,  in  no  case,  be  less  than  twenty, 
exclusive  of  the  day  of  service,  to  which  one  day  shall  lie- 
added  for  every  twenty-five  miles  of  distance  between  the 
Court-house  of  the  county  in  which  the  service  is  made,  and 
the  Court-house  of  the  county  at  which  the  defendant  is 
required  to  appear,  by  the  usual  route  of  travel. 

.  *■ ". — Return  of  summons. 

The  officer  to  whom  the  summons  is  addressed  shall  note- 
on  it  the  day  of  its  delivery  to  him,  and  execute  it  within 


30  THE  CODE  OF 

ten  days  after  its  receipt  by  him.  Before  proceeding  to 
execute  it,  lie  shall  be  entitled  to  require  of  the  plaintiff  his 
fee  for  the  service,  and  five  cents  per  mile  of  the  distance 
from  the  Court-house  of  his  county,  to  the  usual  residence 
of  the  defendant  or  other  place  in  which  he  may  be  found 
in  the  county;  if  required  by  the  plaintiff  he  shall  execute 
the  writ  immediately,  and  in  that  case  he  shall  be  entitled 
in  like  manner  to  require  ten  cents  per  mile,  measured  as 
aforesaid.  When  executed  he  shall  immediately  return  the 
writ,  with  the  date  and  maimer  of  its  execution,  by  mail  or 
otherwise,  to  the  Clerk  of  the  proper  Court, 

§T6.— Service  of  the  complaint. 

A  copy  of  the  complaint  may  or  may  not  be  served  with 
the  summons.  In  either  case  the  plaintiff  must  file  a  copy 
thereof,  with  the  Clerk  of  the  Court  before  which  the  defen- 
dant is  summoned  to  appear  within  ten  days  from  the  issu- 
ing- of  the  summons;  and  in  case  no  copy  shall  have  been 
issued  with  the  summons,  he  shall  also  within  the  said  time 
file  with  the  Clerk  another  copy  thereof,  addressed  to,  and 
for  the  use  of,  the  defendant,  or  if  there  be  several  defen- 
dants, a  copy  for  each  of  them,  provided  however,  if  several 
defendants  appear  by  one  attorney,  one  copy  only  need  be 
filed  for  all  who  so  appear. 

£77, — Plaintiff'  failing  to  file  Complaint  within  ten  days. 

If  the  plaintiff  shall  fail  to  file  his  complaint  within  ten 
days  after  the  issuing  of  his  summons,  then  the  defendant 
may  at  any  time  before  the  filing  of  such  complaint,  and 
within  the  time  limited  for  his  appearance,  enter  an  appear- 
ance specifying  where  within  the  State,  a  copy  of  the  com- 
plaint may  be  served  on  him,  and  the  plaintiff  at  his  own 
expense,  shall  cause  such  copy,  to  be  served  within  sixty 
days;  and  the  defendant  shall  not  be  required  to  answer 
until  the  twentieth  day  after  such  service. 

£7$.— Plaintiff  failing  to  file  Complaint  within  the  time  for  Defendants,  appear- 
enee,  may  be  non-suited. 

If  the  plaintiff  shall  fail  to  file  his  complaint  within  the 
time  limited  by  the  summons,  for  the  appearance  and  answer 


CIVIL  PEOCEEURE.  31 

of  the  defendant,  or  by  the  next  preceding  section,  the  de- 
fendant shall  be  entitled  to  demand  judgment  of  non-suit 
against  the  plaintiff. 

=?T9.— Time  of  filing  pleadings  may  be  enlarged. 

The  time  for  filing  the  complaint  or  of  any  pleading  what- 
ever, may  be  enlarged  by  the  Court  for  good  cause  shown 
by  affidavit,  but  it  shall  not  be  enlarged  by  more  than  twenty 
additional  days  nor  more  than  once,  unless  the  default  shall 
have  been  occasioned  by  accident  over  which  the  party 
applying  had  no  control,  or  by  the  fraud  of  the  opposing 
party;  and  in  all  cases  in  which  the  time  shall  be  enlarged 
unless  upon  the  ground  of  such  accident  or  frand,  the  party 
making  the  application  shall  pay  into  Court  for  the  use  of 
the  opposing  party  five  dollars,  which  shall  not  in  any  event 
be  recovered  back.  Three  days  notice  must  be  given  of  the 
motion  to  enlarge. 

£80.— Plaintiff  shall  name  an  attorney,  in  the  county,  town  &<•. 

At  the  time  of  filing  his  complaint  the  plaintiff,  and  at  the 
time  of  filing  his  answer,  the  defendant,  shall  name  some 
place  and  person  in  the  county  town  in  which  the  Court  to 
which  the  action  is  brought  is  held,  Avhere  and  upon  whom, 
service  of  pleadings  and  notices  in  the  action  may  be  served ; 
and  if  either  shall  fail  to  do  so,  the  filing  of  all  such  plead- 
ings and  notices  in  the  office  of  the  clerk  of  the  Court  shall 
be  deemed  sufficient  service  on  the  day  of  such  filing,  unless 
the  party  shall  in  writing  on  the  copy  of  his  complaint,  or 
answer,  or  by  other  written  notice,  served  on  the  adverse 
party,  require  personal  service  thereof,  at  a  place  named  by 
him  within  the  county,  and  shall  deposit  with  the  clerk  a 
sum  sufficient  to  pay  the  expense  of  such  personal  service ; 
in  which  case,  the  personal  service  shall  be  made  at  his 
expense. 

/' 
§81. — IfotiM  of  no  pergonal  claim. 

In  case  of  a  defendant  against  whom  no  personal  claim  is 

made,  -the   plaintiff  may   deliver  to  such  defendant   with 


32  THE  CODE  OF 

the  summons,  a  notice  subscribed  by  the  plaintiff  or  his 
attorney,  setting  forth  the  general  object  of  the  action,  a 
brief  description  of  the  property  affected  by  it,  if  it  affects 
real  or  personal  property,  and  that  no  personal  claim  is  made 
against  such  defendant,  in  which  case  no  copy  of  the  com- 
plaint need  be  served  on  such  defendant,  unless  within  the 
time  for  answering,  he  shall  in  writing  demand  the  same. 
If  a  defendant  on  whom  such  notice  is  served,  unreasonably 
defend  the  action,  he  shall  pay  costs  to  the  plaintiff. 

§82. — Manner  of  service  of  summons. 

The  summons  shall  be  served  by  delivering  a  copy  thereof 
as  follows: 

1.  If  a  suit  be  against  a  corporation,  to  the  President,  or 
other  head  of  the  corporation,  secretary,  cashier,  treasurer, 
a  director  or  managing  agent  thereof;  but  such  service  can 
be  made  in  respect  to  a  foreign  corporation,  only  when  it  has 
property  within  the  State,  or  the  cause  of  action  arose  therein, 
or  where  the  plaintiff  resides  in  the  State,  or  where  such 
service  can  be  made  within  this  State  personally  upon  the 
President,  Treasurer  or  Secretary  thereof; 

2.  If  against  a  minor  under  the  age  of  fourteen  years  to 
such  minor  personally,  and  also  his  father,  mother  or  guar- 
dian, or  if  there  be  none  within  the  State,  then  to  any  per- 
son having  the  care  and  control  of  such  minor,  or  with  whom 
he  shall  reside,  or  in  whose  service  he  shall  be  employed ; 

3.  If  against  a  person  judicially  declared  to  be  of  unsound 
mind,  or  incapable  of  conducting  his  own  affairs  in  conse- 
quence of  habitual  drunkenness  and  for  whom  a  committee 
or  guardian  has  been' appointed,  to  such  committee  and  to  the 
defendant  personally; 

4.  In  all  other  cases,  to  the  defendant  personally. 

§83.— Service  by  publication  *,  form  of  Summons. 

Where  the  person  on  whom  the  service  of  the  summons  is 
to  be  made,  cannot,  after  due  diligence,  be  found  within  the 
State,  and  that  fact  appears  by  affidavit  to  the  satisfaction 
of  the  Court,  or  a  Judge  thereof,  and  it   in  like   manner 


CIVIL  PROCEDURE.  33 

appears  that  a  cause  ot  action  exists  against  the  defendant  in 
respect  to  whom  the  service  is  to  be  made,  or  that  he  is  a  pro- 
per party  to  an  action  relating  to  real  property  in  this  State, 
such  Court  or  Judge  may  grant  an  order  that  the  service  be 
made  by  the  publication  of  a  summons  in  either  of  the  fol- 
lowing cases: 

1.  Where  the  defendant  is  a  foreign  corporation,  and  has 
property  within  the  State,  or  the  cause  of  action  arose 
therein ; 

2.  Where  the  defendant,  being  a  resident  of  this  State, 
has  departed  therefrom,  with  intent  to  defraud  his  creditors, 
or  to  avoid  the  service  of  a  summons,  or  keeps  himself  con- 
cealed therein  with  a  like  intent; 

3.  Where  he  is  not  a  resident  of  this  State,  but  has  pro- 
perty therein,  and  the  Court  has  jurisdiction  of  the  subject 
of  the  action. 

4.  Where  the  subject  of  the  action  is  real  or  personal  pro- 
perty in  this  State,  and  the  defendant  has  or  claims  a  lien 
or  interest,  actual  or  contingent,  therein,  or  the  relief  de- 
manded consists  wholly  or  partly,  in  excluding  the  defen- 
dant from  any  lien  or  interest  therein. 

5.  Where  the  action  is  for  divorce,  in  the  cases  prescribed 
by  law. 


§84. — Manner  and  effect  of  publication. 

The  order  must  direct  the  publication  in  any  one  or  two 
newspapers  to  be  designated  as  most  likely  to  give  notice 
to  the  person  to  be  served,  and  for  such  length  of  time  as 
may  be  deemed  reasonable,  not  less  than  once  a  week  for 
six  weeks.  In  case  of  publication  the  Court  or  Judge  must 
also  direct  a  copy  of  the  summons  and  complaint  to  be  forth- 
with deposited  in  the  post  office,  directed  to  the  person  to 
be  served,  at  his  place  of  residence,  unless  it  appears  that 
such  residence  is  neither  known  to  the  party  making  the 
application,  nor  can  with  reasonable  diligence  be  ascer- 
tained by  him.     When  publication  is  ordered,  personal  ser- 


34  THE  CODE  OP 

vice  of  a  copy  of  the  summons  and  complaint,  out  of  the 
State,  is  equivalent  to  publication  and  deposit  in  the  post 
office. 

§85. — Defendant  allowed  to  defend  before  and  after  judgment. 

The  defendant  against  whom  publication  is  ordered,  or  his 
representatives,  on  application  and  sufficient  cause  shown  at 
any  time  before  judgment,  must  be  allowed  to  defend  the 
action;  and,  except  in  an  action  for  divorce,  the  defendant 
against  whom  publication  is  ordered,  or  his  representatives, 
may  in  like  manner,  upon  good  cause  shown,  be  allowed  to 
defend  after  judgment,  or  at  any  time  within  one  year  after 
notice  thereof,  and  within  five  years  after  its  rendition,  on 
such  terms  as  may  be  just;  and  if  the  defence  be  successful 
and  the  judgment,  or  any  part  thereof,  have  been  collected, 
or  otherwise  enforced,  such  restitution  may  thereupon  be 
compelled  as  the  court  may  direct;  but  the  title  to  property 
sold  under  such  judgment  to  a  purchaser  in  good  faith  shall 
not  be  thereby  affected.  And  in  all  cases  where  publication 
is  made,  the  complaint  must  be  first  filed,  and  the  summons 
as  published  must  state  the  time  and  place  of  such  filing. 

§86.— Actions  for  foreelosnre  of  mortgages. 

In  actions  for  the  foreclosure  of  mortgages  on  real  estate, 
already  instituted,  or  hereafter  to  be  instituted,  if  any  party 
having  any  interest  in  or  lien  upon  such  mortgaged  premises, 
is  unknown  to  the  plaintiff,  and  the  residence  of  such  party 
eannot,  with  reasonable  diligence,  be  ascertained  by  him, 
and  such  fact  shall  be  made  to  appear  by  affidavit,  to  the 
court,  such  court  may  grant  an  order  that  the  summons  be 
served  on  such  unknown  party  by  publishing  the  same  for 
six  weeks  once  in  each  week  successively,  in  one  newspaper 
printed  in  Raleigh,  and  in  a  newspaper  printed  in  the  county 
where  the  premises  lie,  if  there  be  any,  which  publication 
shall  be  equivalent  to  a  personal  service  on  such  unknown 
party. 

§87. — Joint  and  several  debtors;  Partmrs. 

Where  the  action  is  against  two  or  more  d3fendants,  and 


CIVIL  PROCEDURE.  35 

the  summons  is  served  on  one  or  more  of  them,  but  not  on 
all  them,  the  plaintiff  may  proceed  as  follows : 

1.  If  the  action  be  against  defendants  jointly  indebted 
upon^contract.  he  may  proceed  against  the  defendants  served 
unless  the  court  otherwise  direct;  and  if  he  recover  judg- 
ment, it  may  be  entered  against  all  the  defendants  thus 
jointly  indebted,  so  far  only  as  that  it  may  be  enforced  against 
the  joint  property  of  all,  and  the  separate  property  of  the 
defendants  served,  and  if  they  are  subject  to  arrest,  against 
the  persons  of  the  defendants  served ;  or 

2.  If  the  action  be  against  defendants  severally  liable,  he 
may  proceed  against  the  defendants  served,  in  the  same 
manner  as  if  they  were  the  only  defendants. 

3.  If  all  the  defendants  have  been  served,  judgment  may 
be  taken  against  any  or  either  of  them  severally,  when  the 
plaintiff  would  be  entitled  to  judgment  against  such  defen- 
dant or  defendants  if  the  action  had  been  against  them  or 
any  of  them  alone. 

4.  If  the  name  of  one  or  more  partners,  shall,  for  any 
cause  have  been  omitted  in  any  action  in  which  judgment 
shall  have  passed  against  the  defendants  named  in  the  sum- 
mons, and  such  omission  shall  not  have  been  pleaded  in 
such  action,  the  plaintiff  in  case  the  judgment  therein  shall 
remain  unsatisfied,  may  by  action  recover  of  such  partner 
separately,  upon  proving  his  joint  liability,  notwithstanding 
he  may  not  have  been  named  in  the  original  action ;  but  the 
plaintiff  shall  have  satisfaction  of  only  one  judgment  ren- 
dered for  the  same  cause  of   action. 

§88. — When  service  complete. 

In  the  cases  in  which  service  by  publication  is  allowed, 
the  summons  shall  be  deemed  served  at  the  expiration  of 
the  time  prescribed  by  the  order  of  publication. 

$89.— Proof  of  service. 

Proof  of  the  service  of  the  summons  and  of  the  complaint 
or  notice,  if  any  accompanying  the  same,  must  be : 

1.  By  the  certificate  of  the  sheriff  or  other  proper  officer. 

2.  In  case  of  publication,  the  affidavit  of  the  printer,  or 


36  THE  CODE  OF 

his  foreman,  or  principal  clerk,  showing  the  same,  and  an1 
affidavit  of  a  deposit  of  a  copy  of  the  summons  in  the  post 
office  as  required  by  law,  if  the  same  shall  have  been 
deposited;  or 

3.  The  written  admission   of  the  defendant. 

In  case  of  service  otherwise  than  by  publication,  the 
certificate'  or  admission  must  state  the  time  and  place  of 
service. 

<j00.  —Jurisdiction — Appearance — Notice  of  lis  pendens. 

From  the  time  of  the  service  of  the  summons  in  a  civil 
action,  or  the  allowance  of  a  provisional  remedy,  the  court 
is  deemed  to  have  acquired  jurisdiction,  and  to  have  control 
of  all  the  subsequent  proceedings.  A  voluntary  appearance 
of  a  defendant  is  equivalent  to  personal  service  of  the  sum- 
mons upon  him. 

In  an  action  affecting  the  title  to  real  property,  the  plain- 
tiff, at  the  time  of  filing  the  complaint,  or  at  any  time  after- 
wards, or  whenever  a  warrant  of  attachment,  under  chapter 
four,  of  title  ten,  of  this  Code,  shall  be  issued,  or  at  any 
time  afterwards,  the  plaintiff,  or  a  defendant  when  he  sets 
up  an  affirmative  cause  of  action  in  his  answer  and  demands 
substantive  relief,  at  the  time  of  filing  his  answer,  or  at  any 
time  afterwards,  if  the  same  be  intended  to  affect  real  estate, 
may  file  with  the  cleric  of  each  county  in  which  the  property 
is  situated,  a  notice  of  the  pendency  of  the  action,  contain- 
ing the  names  of  the  parties,  the  object  of  the  action,  and 
the  description  of  the  property  in  that  county  affected  there- 
by; and  if  the  action  be  for  the  foreclosure  of  a  mortgage, 
such  notiee  must  be  filed  twenty  days  before  judgment,  and 
must  contain  the  date  of  the  mortgage,  the  parties  thereto, 
and  the  time  and  place  of  recording  the  same.  From  the 
time  of  filing  only  shall  the  pendency  of  the  action  be  con- 
structive notice  to  a  purchaser  or  incumbrancer  of  the  pro- 
perty affected  thereby;  and  every  person  whose  conveyance 
or  incumbrance  is  subsequently  executed  or  subsequently 
recorded,  shall  be  deemed  a  subsequent  purchaser  or  incum- 
brancer, and  shall  be  bound  by  all  proceedings  taken  after 


CIVIL  PROCEDURE.  37 

the  filing  of  such  notice,  to  the  same  extent  as  if  he  were 
made  a  party  to  the  action.  For  the  purposes  of  this  section, 
an  action  shall  be  deemed  to  be  pending  from  the  time  of 
filing  such  notice ;  provided,  however,,  that  such  notice  shall 
be  of  no  avail  unless  it  shall  be  followed  by  the  first  publica- 
tion of  the  summons  on  an  order  therefor,  or  by  the  personal 
service  thereof  on  a  defendant  within  sixty  days  after  such 
tiling.  And  the  court  in  which  the  said  action  was  com- 
menced may,  in  its  discretion,  at  any  time  after  the  action 
.shall  be  settled,  discontinued,  or  abated,  as  is  provided  in 
section  number  sixty-four,  on  application  of  any  person 
aggrieved,  and  on  good  cause  shown,  and  on  such  notice  as 
shall  be  directed  or  approved  by  the  court,  order  the  notice 
authorized  by  this  section  to  be  canceled  of  record  by  the 
clerk  of  any  county  in  whose  office  the  same  may  have  been 
filed  or  recorded ;  and  such  cancellation  shall  be  made  by  an 
indorsement  to  that  effect  on  the  margin  of  the  record,  which 
shall  refer  to  the  order,  and  for  which  the  clerk  shall  be 
entitled  to  a  fee  of  twenty-five  cents. 


TITLE     VIII. 

OP   THE   PLEADINGS   IN   CIVIL .  ACTIONS.- 


Chapter 

I.        Complaint. 

(c 

II.       Demurrer. 

<< 

III.     Answer. 

« 

IV.     Reply. 

a 

V.       Duty  and  power  of  Clerk  of  the  Superior  Court  in  relations  to 

the  pleadings,  and  in  collateral  matters. 

a 

VI.    General  Rules  of  pleading. 

t< 

VII.  Mistakes  in  pleading  and  amendments. 

«< 

VIII.  Of  the  qualification  and  general  duties  of  Clerks  of  the  Superior 

Courts. 

CHAPTER  I. 

THE    COMPLAINT. 

^91.— Forms  of  pleading. 

All  the  forms  of  pleading  heretofore  existing  are  abolished ; 
and  hereafter,  the  forms  of  pleading  in  civil  actions  in  courts 


38  THE  CODE  OP 

of  record,  and  the  rules  by  -which  the  sufficiency  of  the 
pleadings  is  to  be  determined,  are  those  prescribed  by  this 
Code. 

§92— Complaint. 

The  first  pleading  on  the  part  of  the  plaintiff  is  the  com- 
plaint. 

§93. — Complaint,  what  to  contain. 

The  complaint  shall  contain ; 

1.  The  title  of  the  cause,  specifying  the  name  of  the  court 
in  which  the  action  is  brought,  the  name  of  the  county  in 
•which  the  trial  is  required  to  be  had,  and  the  names  of  tha 
parties  to  the  action  plaintiff  and  defendant 
.  2.  A  plain  and  concise  statement  of  the  facts  constituting 
acause  of  action,  without  unnecessary  repetition;  and  each 
material  allegation  shall  be  distinctly  numbered. 

3.  A  demand  of  the  relief  to  which  the  plaintiff  supposes 
himself  entitled.  If  the  recovery  of  money  be  demanded, 
the  amount  thereof  must  be  stated. 


CHAPTER  II. 


THE  DEMURRER. 


§94.— Defendant  to  demnr  or  answer. 

The  only  pleading  on  the  part  of  the  defendant  is  either 
a  demurrer  or  an  answer.  It  must  be  filed  in  the  office  of 
the  clerk  of  the  court  before  which  the  defendant  is  sum- 
moned to  appear,  together  with  a  copy  thereof  for  the 
plaintiff,  within  ten  days  after  the  time  limited  for  the 
appearance  of  the  defendant :  a  copy  thereof  must  be  served 
on  the  attorney  of  the  plaintiff  if  he  shall  have  named  one 
in  the  county  town,  in  lieu  of  filing  one  for  him  in  the 
clerk's  office  or  on  the  plaintiff  personally  if  he  shall  have 
complied  with  the  provisions  of  section  eighty.     If   the 


CIVIL  PROCEDURE.  39 

plaintiff  shall  have  failed  to  file  his  complaint  within  the 
time  limited  for  that  purpose,  the  defendant  may  move  for 
judgment  of  nonsuit. 

$95. — When  defendant  may  demur. 

The  defendant  may  demur  to  the  complaint  when  it  shall 
appear  upon  the  face  thereof,  either ; 

1.  That  the  court  has  no  jurisdiction  of  the  person  of  the 
defendant,  or  the  subject  of  the  action ;  or 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue ;  or 

3.  That  there  is  another  action  pending  between  the  same 
parties  for  the  same  cause ;  or 

4.  That  there  is  a  defect  of  parties  plaintiff  or  defen- 
dant; or 

5.  That  several  causes  of  action  have  been  improperly 
united;  or 

6.  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action. 

$96.— Demnrrer  mnst  specify  grounds  of  objection. 

The  demurrer  shall  distinctly  specify  the  grounds  of 
objection  to  the  complaint.  Unless  it  does  so,  it  may  be 
disregarded.  It  may  be  taken  to  the  whole  complaint,  or  to 
any  of  the  alleged  causes  of  action  stated  therein. 

§97.— How  to  proceed  if  complaint  be  amended. 

If  the  complaint  be  amended  a  copy  thereof  must  be 
served  on  the  defendant  in  the  manner  provided  in  section 
eighty,  for  the'  service  of  pleadings  and  notices  after  appear- 
ance, within  twenty  days  after  the  leave  to  amend. 

§9&. — Objection  not  appearing  on  eomplaiut. 

When  any  of  the  matters  enumerated  in  section  ninety- 
four,  do  not  appear  upon  the  face  of  the  complaint,  the 
objection  may  be  taken  by  answer. 

§99.— Objection,  when  deemed  waived. 

If  no  such  objection  be  taken  either  by  demurrer  or 
answer,  the  defendant  shall  be  deemed  to  have  waived  the 


40  THE  CODE  OF 

same,  excepting  only  the  objection. to  the  jurisdiction  of  the 
court,  and  the  objection  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action. 


CHAPTER  III. 

THE   ANSWER. 

§100. — Answer,  what  to  contain. 

The  answer  of  the  defendant  must  contain : 

1.  A  general  or  specific  denial  of  each  material  allegation 
of  the  complaint  controverted  by  the  defendant,  or  of  any 
knowledge  or  information  thereof  sufficient  to  form  a  belief; 

2.  A  statement  of  any  new  matter  constituting  a  defence 
or  counter-claim,  in  ordinary  and  concise  language,  without 
repetition. 

§101 .—  Connter-clnini. 

The  counter-claim  mentioned  in  the  last  section,  must  be 
one  existing  in  favor  of  a  defendant,  and  against  a  plaintiff, 
between  whom  a  several  judgment  might  be  had  in  the 
action,  and  arising  out  of  one  of  the  following  causes  of 
action : 

1.  A  cause  of  action  arising  out  of  the  contract  or  trans- 
action set  forth  in  the  complaint  as  the  foundation  of  the 
plaintiff's  claim,  or  connected  with  the  subject  of  the  action ; 

2.  In  an  action  arising  on  contract,  any  other  cause  of 
action  arising  also  on  contract,  and  existing  at  the  com- 
mencement of  the  action. 

§102.— Several  Dcfcuccs. 

The  defendant  may  set  forth  by  answer  as  many  defences 
and  counter-claims  as  he  may  have,  whether  they  be  such  as 
have  been  heretofore  denominated  legal,  or  equitable  or  both. 
They  must  each  be  separately  stated  and  numbered,  and 
refer  to  the  cause  of  action  which  they  are  intended  to 
answer,  in  such  manner  that '  they  may  be  intelligibly  dis- 
tinguished. 


CIVIL  PROCEDURE.  41 

§103. — Demurrer  and  answer* 

The  defendant  may  demur  to  one  or  more  of  several  causes 
of  action  stated  in  the  complaint,  and  answer  to  the  residue. 

$101. — Sham  and  irrelevant  defences. 

Sham  and  irrelevant  answers  and  defences  may  be  stricken 
out  on  motion,  and  upon  such  terms  as  the  Court  may  in  its 
•discretion  impose. 


CHAPTER  IV. 

THE    REPLY 

^105.— Reply, — Demurrer  to  answer. 

When  the  answer  contains  new  matter  constituting  a 
counter-claim,  the  plaintiff  may  within  twenty  days,  reply  to 
such  new  matter,  denying  generally  or  specifically  each 
allegation  controverted  by  him,  or  any  knowledge  or  infor- 
mation thereof  sufficient  to  form  a  belief;  and  he  may  allege, 
in  ordinary  and  concise  language,  without  repitirion,  any 
new  matter  not  inconsistent  with  the  complaint,  constitu- 
ting a  defence  to  such  new  matter  in  the  answer;  and  the 
plaintiff  may  in  all  cases  demur  to  an  answer  containing  new 
matter,  where  upon  its  face  it  does  not  constitute  a  counter- 
claim or  defence ;  and  the  plaintiff  may  demur  to  one  or 
more  of  such  defences  or  counter-claims  and.  reply  to  the 
residue  of  the  counter-claims.  And  in  other  cases,  when  an 
answer  contains  new  matter  constituting  a  defence  by  way 
of  avoidance,  the  Court  may,-  in  its  discretion,  on  the  defen- 
dant's motion,  require  a  reply  to  such  new  matter;  and  in 
that  case,  the  reply  shall  be  subject  to  the  same  rules  as  a 
reply  to  a  counter-claim. 

<;106. — Motion  for  judgment  on  answer. 

If  the  answer  contain  a  statement  of  new  matter  constitu- 
ting a  counter-claim,  and  the  plaintiff  fail  to  reply  or  demur 
thereto  within  twenty  days  after  the  filing  oi  service  of  such 


42  THE  CODE  OF 

answer,  the  defendant  may  move  for  such  judgment  as  he  is 
entitled  to  upon  such  statement;  and  if  the  case  require  it, 
an  order  for  an  inquiry  of  damages  by  a  jury  may  be  made. 

§107. — Demurrer  to  reply. 

If  a  reply  of  the  plaintiff  to  any  defence  set  up  by  the* 
answer  of  the  defendant  be  insufficient,  the  defendant  may 
demur  thereto,  and  shall  state  the  grounds  thereof. 


CHAPTER  V. 

DUTIES     AND    POWERS     OF   THE     CLERK    OP     THE    SUPERIOR     COURT    IIT 
RELATION    TO    THE    PLEADINGS,    AND    IN    COLLATERAL    MATTERS. 

$108.— Jurisdiction  of  Clerk  on  pleadings,  &c. 

The  Clerk  of  the  Superior  Court  shall  have  jurisdiction  to 
hear  and  decide  on  all  questions  of  practice  and  procedure,, 
arising  in  actions  brought  to  this  Court,  and  on  all  other 
matters  whereof  jurisdiction  is  hereby  given  to  the  Superior 
Court,  unless  the  Judge  of  said  Court,  or  the  Court  at  a 
regular  term  thereof  be  expressly  referred  to. 

(>109.— Either  party  may  appeal. 

Any  party  may  appeal  from  any  decision  of  the  Clerk  to 
the  Judge  of  the  Court,  without  bond. 

$110. — Duty  of  the  Clerk  on  appeal  prayed. 

On  such  appeal  being  prayed,  the  Clerk,  within  three 
days  thereafter,  shall  prepare  a  statement  of  the  facts  of  the 
case,  of  his  decision,  and  of  the  appeal,  and  shall  sign  the 
same;  he  shall,  within  the  time  aforesaid,  exhibit  such  state- 
ment to  the  parties  or  their  attorneys  on  request;  if  such- 
statement  is  satisfactory,  the  parties  or  their  attorneys  shall 
sign  the  same;  if  either  party  object  to  the  statement  as 
partial  or  erroneous,  he  may  put  his  objections  in   writing, 


CIVIL  PROCEDURE.  4& 

and  the  Clerk  shall  attach  such  writing  to  his  statement,  and 
within  two  days  thereafter  he  shall  send  such  statement, 
together  with  the  objections,  and  copies  of  all  necessary- 
papers,  by  mail  or  otherwise  if  necessary,  to  the  Judge  for  his 
decision. 

§111.— Issues  of  Law  seat  to  Jndge. 

When  any  issue  of  law  shall  be  joined  on  the  pleadings 
before  the  Clerk,  he  shall  within  ten  days  thereafter,  send 
by  mail,  or  otherwise,  if  necesary,  to  the  Judge  of  the  Court, 
a  copy  of  the  record,  for  hearing  and  decision  by  him. 

§112.— Party  to  be  heard  before  Judge* 

The  attorney  of  either  party  may  endorse  on  the  statement 
of  any  appeal,  or  on  the  copy  of  the  record  of  any  issue  sent 
to  the  Judge,  a  request  to  be  heard  before  him  on  such 
matter. 

§113.— Duty  of  Judge  ou  appeal. 

It  shall  be  the  duty  of  the  Judge  on  receiving  a  state- 
ment of  appeal  from  the  clerk,  or  the  copy  of  the  record  of 
an  issue  of  law,  to  decide  the  questions  presented  as  early 
as  may  be.  But  if  he  shall  have  been  informed  in  writing, 
by  the  attorney  of  either  party,  that  he  desires  to  be  heard 
on  the  questions,  the  Judge  shall  fix  a  time  and  place  for 
such  hearing,  and  give  the  attorneys  of  both  parties  reason- 
able notice  thereof.  He  shall  transmit  his  decision  in  writ- 
ing, endorsed  on  or  attached  to  the  record,  to  the  clerk  of 
the  Court,  who  shall  immediately  acknowledge  the  receipt 
thereof,  and  within  three  days  after  such  receipt,  notify  the 
attorneys  of  the  parties  of  the  decision,  and  on  request  and 
the  payment  of  his  legal  fees,  give  them  a  copy  thereof; 
and  the  parties  receiving  such  notice,  may  proceed  there- 
after according  to  law. 

§114. — Judge  to  keep  a  docket. 

The  judge  shall  keep  a  docket,  in  which  shall  be  entered 
the  title  of  every  case  brought  in  any  manner  before  him  out 


44  •  THE  CODE  OF 

of  term,  every  motion  made  therein  before  him,  and  a  copy 
of  every  order  and  judgment  rendered  by  him ;  and  in  case 
the  original  of  any  order  or  judgment  of  such  Judge,  shall 
be  lost  or  destroyed,  a  copy  from  such  docket,  certified  by 
the  Judge,  shall  be  as  evidence  of  such  order  or  judgment 
in  place  of  the  original,  and  with  the  same  effect  for  all 
purposes. 

$115.— Judgment  on  matter  of  fact  final;    on  matter  of  law,    maybe  ap- 
pealed from. 

The  said  judgment  on  issues  of  fact,  shall  be  final ;  any 
party  within  ten  days  after  notice  of  such  judgment,  may 
pray  an  appeal  to  the  Supreme  Court  of  the  State  from  such 
judgment,  upon  any  matter  of  law  or  legal  inference  therein, 
under  the  regulations  provided  for  appeals  in  other  cases. 
But  execution  shall  not  be  suspended  until  the  undertakings 
required  by  the  provisions  of  Title  XIII  of  this  Code, 
entitled  "  Of  Appeals  in  Civil  Actions"  shall  have  been  given 
as  required. 


CHAPTER  VI. 


GENERAL  RULES  ON  PLEADING. 


$116. — Pleadings  to  be  subscribed  and  verified. 

Every  pleading  in  a  court  of  record,  must  be  subscribed 
by  the  party  or  his  attorney;  and  when  any  pleading  is  veri- 
fied, every  subsequent  pleading,  except  a  demurrer,  must  be 
verified  also. 

gll7. — Pleadings,  how  verified. 

The  verification  must  be  to  the  effect  that  the  same  is  true 
to  the  knowledge  of  the  person  making  it,  except  as  to  those 
matters  stated  on  information  and  belief,  and  as  to  those 
matters  he  believes  it  to  be  true ;  and  must  be  by  affidavit  of 
the  party,  or  if  there  be  several  parties  united  in  interest, 
and   pleading   together,    by  one  at  least   of  such   parties 


CIVIL  PROCEDURE.  45 

acquainted  with  the  facts,  if  such  party  be  within  the  coun- 
ty where  the  attorney  resides,  and  capable  of  making  the 
affidavit.  The  affidavit  may  also  be  made  by  the  agent  or 
attorney,  if  the  action  or  defence  be  founded  upon  a  written 
instrument  for  the  payment  of  money  only,  and  such  instru- 
ment be  in  the  possession  of  the  agent  or  attorney,  or  if  all 
the  material  allegations  of  the  pleading  be  within  the  per- 
sonal knowledge  of  the  agent  or  attorney.  When  the  plead- 
ing is  verified  by  any  other  person  than  the  party,  he  shall 
set  forth  in  the  affidavit  his  knowledge,  or  the  grounds  of 
his  belief  on  the  subject,  and  the  reasons  why  it  is  not  made 
by  the  party.  When  a  corporation  is  a  party,  the  verifica- 
tion may  be  made  by  any  officer  thereof;  and  when  the 
State,  or  any  officer  thereof  in  its  behalf,  is  a  party,  the  veri- 
fication may  be  made  by  any  person  acquainted  with  the 
facts.  The  verification  may  be  omitted  when  an  admission 
of  the  truth  of  the  allegation  might  subject  the  party  to 
prosecution  for  felony.  And  no  pleading  can  be  used  in  a 
criminal  prosecution  against  the' party,  as  proof  of  a  fact 
admitted  or  alleged  in  such  pleading. 

£118.— Items  of  account— particulars,  to  be  furnished  when. 

It  shall  not  be  necessary  for  a  party  to  set  forth  in  a  plead- 
ing the  items  of  an  account  therein  alleged;  but  he  shall 
deliver  to  the  adverse  party,  within  ten  days  after  a  demand 
thereof  in  writing,  a  copy  of  the  account,  which  if  the  plead- 
ing is  verified,  must  be  verified  by  his  own  oath,  or  that  of 
his  agent  or  attorney,  if  within  the  personal  knowledge  of 
such  agent  or  attorney,  to  the  effect  that  he  believes  it  to  be 
true,  or  be  precluded  from  giving  evidence  thereof.  The 
court  or  the  Judge  thereof,  may  order  a  further  account 
when  the  one  delivered  is  defective;  and  the  court  may  in 
all  cases,  orderra  bill  of  particulars  of  the  claim  of  either 
party  to  be  furnished. 

<)I19. — Pleadings  how  Construed. 

In  the  construction  of  a  pleading  for  the  purpose  of  deter- 
mining its  effect,  ^allegations  shall  be  liberally  construed, 
with  a  view  of  substantial  justice  between  the  parties. 


46  THE  CODE  OF 

$120.— Irrelevant  or  redundant— Indefinite  or  uncertain. 

If  irrelevant  or  redundant  matter  be  inserted  in  a  plead- 
ing, it  may  be  stricken  out,  on  motion  of  any  person  aggriev- 
ed thereby.  And  \vhen  the  allegations  of  a  pleading  are  so 
indefinite  or  uncertain  that  the  precise  nature  of  the  charge 
or  defence  is  not  apparent,  the  court  may  require  the  plead- 
ing to  be  made  definite  and  certain  by  amendment. 

§121.— Judgments  how  to  be  pleaded. 

In  pleading  a  judgment  or  other  determination  of  a  court 
or  officer  of  special  jurisdiction,  it  shall  not  be  necessary  to 
state  the  facts  conferring  jurisdiction,  but  such  judgment  or 
determination  may  be  stated  to  have  been  duly  given  or 
made.  If  such  allegation  be  controverted,  the  party  plead- 
ing shall  be  bound  to  establish,  on  the  trial,  the  facts  con- 
ferring jurisdiction. 

$122.— Conditions  precedent  how  to  be  pleaded — Instrument  for  payment  of 
money  only. 

In  pleading  the  performance  of  conditions  precedent  in  a 
contract,  it  shall  not  be  necessary  to  state  the  facts  showing 
such  performance  ;  but  it  may  be  stated  generally  that  the 
party  duly  performed  all  the  conditions  on  his  part;  and  if 
such  allegation  be  controverted,  the  party  pleading  shall  be 
bound  to  establish,  on  the  trial,  the  facts  showing  such  per- 
formance. In  an  action  or  defence  founded  upon  an  instru- 
ment for  the  payment  of  money  only,  it  shall  be  sufficient 
for  the  party  to  give  a  copy  of  the  instrument,  and  to  state 
that  there  is  due  to  him  thereon,  from  the  adverse  party,  a 
specified  sum  which  he  claims. 

§123.—  Private  statutes,  how  to  be  pleaded. 

In  pleading  a  private  statute  or  a  right  derived  therefrom, 
it  shall  be  sufficient  to  refer  to  such  statute,  by  its  title  and 
the  day  of  its  i-atification,  and  the  court  shall  thereupon 
take  judicial  notice  thereof. 


CIVIL  PROCEDURE.  47 

§124. — Libel  and  Slander,  how  stated  in  complaint. 

In  an  action  for  libel  or  slander,  it  shall  not  be  necessary 
to  state  in  the  complaint  any  extrinsic  facts,  for  the  purpose 
-of  showing  the  application  to  the  plaintiff,  of  the  defama- 
tory matter  out  of  which  the  cause  of  action  arose:  but  it 
shall  be  sufficient  to  state  generally  that  the  same  was  pub- 
lished or  spoken  concerning  the  plaintiff;  and  if  such  alle- 
gation be  controverted,  the  plaintiff  shall  be  bound  to  estab- 
lish, on  trial,  that  it  was  so  published  or  spoken. 

*$1 25. —Answer  in  sueh  eases. 

In  the  actions  mentioned  in  the  last  section,  the  defendant 
may  in  his  answer,  allege  both  the  truth  of  the  matter 
charged  as  defamatory,  and  any  mitigating  circumstances  to 
reduce  the  amount  of  damages ;  and  whether  he  prove  the 
justification  or  not,  he  may  give  in  evidence  the  mitigating 
circumstances. 

§126.— What  causes  of  action  may  be  joined  in  the  same  complaint. 

The  plaintiff  may  unite  in  the  same  complaint  several 
causes  of  action,  whether  they  be  such  as  have  been  hereto- 
fore denominated  legal,  or  equitable,  or  both,  where  they  all 
arise  out  of, 

1.  The  same  transaction ;  or  transactions  connected  with 
the  same  subject  of  action ; 

2.  Contract  express  or  implied;  or 

3.  Injuries  with  or  without  force,  to  person  and  property 
or  either;  or 

4.  Injuries  to  character;  or 

5.  Claims  to  recover  real  property,  with  or  without  dam- 
ages for  the  withholding  thereof;  and  the  rents  and  profits 
of  the  same ;  or 

G.  Claims  to  recover  personal  property,  with  or  without 
damages  for  the  withholding  thereof;  or 

7.  Claims  against  a  trustee,  by  virtue  of  a  contract,  or  by 
operation  of  law. 


48  THE  CODE  OF 

But  the  causes  of  action  so  united  must  all  belong  to*  one 
of  these  classes,  and  except  in  actions  for  the  foreclosure  of 
mortgages,  must  affect  all  the  parties  to  the  action,  and  not 
require  different  places  of  trial,  and  must  be  separately 
stated.  In  actions  to  foreclose  mortgages,  the  court  shall 
have  power  to  adjudge  and  direct  the  payment  by  the  mort- 
gagor of  any  residue  of  the  mortgage  debt  that  may  remain 
unsatisfied  after  a  sale  of  the  mortgaged  premises,  in  cases 
in  which  the  mortgagor  shall  be  personally  liable  for  the 
debt  secured  by  such  mortgage ;  and  if  the  mortgage  debt 
be  secured  by  the  convenant  or  obligation  of  any  person 
other  than  the  mortgagor,  the  plaintiff  may  make  such  per- 
son a  party  to  the  action,  and  the  court  may  adjudge  pay- 
ment of  the  residue  of  such  debt  remaining  unsatisfied  after 
a  sale  of  the  mortgaged  premises,  against  such  other  person,. 
and  may  enforce  such  judgment  as  in  other  cases. 

\)127. — Allegation  not  denied  ;  when  to  be  deemed  trne. 

Every  material  allegation  of  the  complaint  not  controvert- 
ed by  the  answer,  as  prescribed  in  section  ninety-seven,  and 
every  material  allegation  of  new  matter  in  the  answer,  con- 
stituting a  counter  claim,  not  controverted  by  the  reply,  as 
prescribed  in  section  one  hundred  and  one,  shall,  for  the  pur- 
poses of  the  action,  be  taken  as  true.  But  the  allegation  "of 
new  matter  in  the  answer,  not  relating  to  a  counter-claim, 
or  of  new  matter  in  reply,  is  to  be  deemed  controverted  by 
the  adverse  party  as  upon  a  direct  denial  or  avoidance,  as 
the  case  may  require. 


CHAPTER  YII. 

MISTAKES   IN     PLEADINGS    AND   AMENDMENTS. 

§5128. — Materia!  variance. 

No  variance  between  the  allegation  in  a  pleading  and  the 
proof  shall  be  deemed  material,   unless  it    have   actually 


CIVIL  PROCEDURE.  49 

• 

misled  the  adverse  party,  to  his  prejudice,  in  maintaining 
his  action  upon  the  merits.  Whenever  it  shall  be  alleged 
that  a  party  has  been  so  misled,  that  fact  shall  be  proved  to 
the  satisfaction  of  the  court,  and  in  what  respect  he  has  been 
misled;  and  thereupon  the  Judge  may  order  the  pleading  to 
be  amended  upon  such  terms  as  shall  be  just. 

,  1 2<t. — Immaterial  variance. 

Where  the  variance  is  not  material  as  provided  in  the  last 
section,  the  Judge  may  direct  the  fact  to  be  found  according 
to  the  evidence,  or  may  order  an  immediate  amendment 
without  costs. 

v>130.— A  failure  of  proof,  when. 

Where,  however,  the  allegation  of  the  cause  o±  action  or 
defence  to  which  the  proof  is  directed  is  unproved,  not  in 
some  particular  or  particulars  only,  but  in  its  entire  scope 
and  meaning,  it  shall  not  be  deemed  a  case  of  variance 
within  the  last  sections,  but  a  failure  of  proof. 

§131. — Amendments  of  eourse  after  allowance  of  demurrer. 

Any  pleading  may  be  once  amended  by  the  party  of 
course,  without  costs  and  without  prejudice  to  the  proceed- 
ings already  had,  at  any  time  before  the  period  for  answer- 
ing it  expires :  or  it  can  be  so  amended  at  any  time  within 
twenty  days  after  the  service  of  the  answer  or  demurrer  to 
such  pleading,  unless  it  be  made  to  appear  to  the  court  that 
it  was  done  for  the  purpose  of  delay,  and  the  plaintiff  or 
defendant  will  thereby  lose  the  benefit  of  a  term  for  which 
the  cause  is  or  may  be  docketed  for  trial;  and  if  it  appear 
to  the  court  or  Judge  that  such  amendment  was  made  for 
such  purpose,  the  same  may  be  stricken  out,  and  such  terms 
imposed  as  to  the  court  or  Judge  may  seem  just.  In  such 
case  a  copy  of  the  amended  pleading  must  be  served  on  the 
adverse  party.  After  the  decision  of  a  demurrer,  the  Judge 
may,  in  his  discretion,  if  it  appear  that  the  demurrer  was 
interposed  in  good  faith,  allow  the  party  to  plead  over  upon 

such  terms  as  may  be  just.     It  the  demurrer  be  allowed  for 

4 


50  THE  CODE  OF 

• 

the  reason  that  several  causes  of  action  have  been  improperly- 
united,  the  Judge  may,  in  his  discretion,  and  upon  such  terms 
as  may  be  just,  order  the  action  to  be  divided  into  as  many 
actions  as  may  be  necessary  to  the  proper  determination  of 
the  causes  of  action  therein  mentioned. 

§132. — Amendments  by  order. 

The  court  may,  before,  and  the  Judge  may,  after  judg- 
ment, in  furtherance  of  justice,  and  on  such  terms  as  may 
be  proper,  amend  any  pleading  process  or  proceeding,  by- 
adding  or  striking  out  the  name  of  any  party ;  or  by  cor- 
recting a  mistake  in  the  name  of  a  party,  or  a  mistake  in 
any  other  respect;  or  by  inserting  other  allegations  material 
to  the  case;  or  when  the  amendment  does  not  change  sub- 
stantially the  claim  or  defence,  by  conforming  the  pleading 
or  proceeding  to  the  facts  proved. 

<)133. — Relief  ill  case  of  a  mistake. 

The  Judge  may  likewise  in  his  discretion,  and  upon  such 
terms  as  may  be  just,  allow  an  answer  or  reply  to  be  made, 
or  other  act  to  be  done,  after  the  time  limited  by  this  act,  or 
by  an  order  enlarge  such  time ;  and  may  also  in  his  discre- 
tion, and  upon  such  terms  as  may  be  just,  at  any  time  within 
one  year  after  notice  thereof,  relieve  a  party  from  a  judg- 
ment order  or  other  proceeding  taken  against  him  through 
his  mistake,  inadvertence,  surprise  or  excusable  neglect,  and 
may  supply  an  omission  in  any  proceeding ;  and  whenever 
any  proceeding  token  by  a  party  tails  to  conform  in  any 
respect  to  the  provisions  of  this  Code,  the  Judge,  may  in 
like  manner  and  upon  like  terms,  permit  an  amendment  oi 
such  proceeding,  so  as  to  make  it  conformable  thereto. 

^134. — When  plain  till'  ignorant  of  name  of  defend  ant. 

When  the  plaintiff  shall  be  ignorant  of  the  name  of  a 
defendant,  such  defendant  may  be  designated  in  any  plead- 
ing cr  proceeding  by  name;  and  when  his  true  name  shall 
be  discovered,  the  pleading  or  proceeding  may  be  amended 
accordingly. 


CIVIL  PROCEDURE.  51 

<jl  35.— Errors  or  defects  not  substantial  to  be  disregarded. 

The  Court  and  the  Judge  thereof,  shall  in  every  stage  of 
action,  disregard  any  error  of  defect  in  the  pleadings  or 
proceedings,  which  shall  not  affect  the  substantial  rights  of 
the  adverse  party;  and  no  judgment  shall  be  reversed  or 
affected  by  reason  of  such  error  or  defect. 

<>136. — Supplemental  pleadings. 

The  plaintiff  and  defendant  respectively  may  be  allowed 
on  motion  to  make  a  supplemental  complaint,  answer  or 
reply,  alleging  facts  material  to  the  case,  occurring  after  the 
former  complaint,  answer  or  reply,  or  of  which  the  party 
was  ignorant  when  his  former  pleading  was  made,  and  either 
party  may,  by  leave  of  the  Court  in  any  pending  or  future 
action,  set  up  by  a  supplemental  pleading,  the  judgment  or 
decree  of  any  Court  of  competent  jurisdiction,  rendered  since 
the  commencement  of  such  action,  determining  the  matter 
in  controversy  in  said  action  or  any  part  thereof,  and  if  said 
judgment  be  set  up  by  the  plaintiff,  the  same  shall  be  with- 
out prejudice  to  any  provisional  remedy  theretofore  issued  or 
other  proceedings  had,  in  said  action,  on  his  behalf. 


CHAPTER  VIII. 

OP    THE     QUALIFICATION     AND     GENERAL     DUTIES    OF     CLERKS    OF     THE. 
SUPERIOR   COURTS. 

<jI37 — Bond  of  Clerk. 

At  the  first  meeting  of  the  County  Commissioners  of  each; 
county,  after  the  election  or  appointment  of  any  clerk  of  a 
Superior  Court,  it  shall  be  the  duty  of  the  Clerk  to  deliver 
to  such  Commissioners,  a  bond  with  sufficient  sureties,  to  be- 
approved  by  them,  in  a  penalty  of  ten  thousand  dollars, 
payable  to  the  State  of  North  Carolina,  and  with  a  condition; 
to  be  void,  if  he  shall  account  for,  and  pay  over,  accoi'ding  to. 
law,  all  monies  and  effects  which  have  come  or  may  come- 


52  'THE  CODE  OF 

into  his  hands,  by  virtue  or  color  of  his  office,  and  shall  dil- 
igently preserve  and  take  care  of  all  books,  records,  papers 
and  property  which  have  come  or  may  come  into  his  posses- 
sion, by  virtue  or  color  of  his  office,  and  shall  in  all  things 
faithfully  perform  the  duties  of  his  office  as  they  are,  or  there- 
after shall  be  prescribed  by  law.  Each  surety  shall  take  and 
subscribe  an  oath,  before  the  Register  of  Deeds,  that  he  is  worth 
a  certain  sum  (which  shall  not  be  less  than  one  thousand 
dollars)  over  and  above  all  his  debts  and  liabilities  and  his 
homestead  exemption,  and  the  sums  thus  sworn  to,  shall  not 
be  less  in  the  aggregate  than  the  penalty  of  the  bond 

£138.— Bond  how  approved,  &c. 

The  approval  of  said  bond,  by  the  Commissioners  or  a 
majority  of  them,  shall  be  recorded  by  their  clerk.  Any 
Commissioner  approving  a  bond  which  he  knows  or  believes 
to  be  insufficient,  shall  be  personally  liable  as  if  he  were  a 
surety  thereto.  The  said  bond  shall  be  acknowledged  by 
the  paities  thereto,  or  proved  by  a  subscribing  witness, 
before  the  Clerk  of  said  Commissioners,  or  their  presiding 
officer,  registered  in  the  Register's  office  in  a  separate  book 
to  be  kept  by  him  for  the  registration  of  official  bonds;  and 
the  original,  with  the  approval  thereof  endorsed,  deposited 
with  the  Register  for  safe  keeping.  The  like  remedies  shall 
be  had  upon  said  bond,  as  are,  or  may  be  given  by  law  on 
official  bonds. 

()l 3P.— Qualification  of  Clerks. 

The  clerks  of  the  Superior  Court  before  entering  on  the 
duties  of  their  office,  shall  take  and  subscribe  before  some 
officer  authorized  by  law  to  administer  an  oath,  the  oaths 
prescribed  by  law,  and  file  such  oath  with  the  Register  of 
Deeds  for  the  county. 

<>U0.— Failnie  to  gre  bond,  etc. 

In  case  any  clerk  shall  fail  to  give  bond  and  qualify  as 
above  directed,  the  presiding  officer  of  the  County  Commis- 
sioners of  his  county,  shall  immediately  inform  the  Judge  of 


CIVIL  PROCEDURE.  53 

the  Judicial  District  thereof,  who  shall  thereupon  declare  the 
office  vacant  and  fill  the  same,  and  the  appointee  shall  give 
bond  and  qualify  as  above  directed. 

§141. — Office,  where  to  be  kept — When  to  be  opeD. 

He  shall  have  an  office,  in  the  Court  house  or  other  place 
provided  by  the  County  Commissioners,  in  the  county  town 
of  his  county.  He  shall  give  due  attendance,  in  person  or 
by  deputy  at  his  office  daily  (Sunday's  and  holidays, 
excepted)  from  nine  o'clock  A.  M.,  to  three  o'clock  P.  M., 
and  longer  when  necessary  for  the  despatch  of  business. 

()Ui. — To  receive  official  papers,  &c. 

Immediately  after  he  shall  have  given  bond  and  qualified 
as  aforesaid,  he  shall  receive  from  the  late  Clerks  of  the 
County  and  Superior  Courts  and  Clerk  and  Master  of  the 
Court  of  Equity,  all  the  records,  books,  papers,  monies  and 
property  of  their  respective  offices,  and  give  receipts  for  the 
same,  and  if  any  clerk,  or  clerk  and  master,  shall  refuse,  or 
fail  within  a  reasonable  time  after  demand  to  deliver  such 
records,  books,  papers  and  property,  they  shall  be  respec- 
tively liable  on  their  official  bonds  for  the  value  thereof,  and 
be  held  guilty  of  a  misdemeanor. 

<>l  13. —  To  keep  records,  &c* 

He  shall  be  furnished  with  the  requisite  stationery  and 
furniture,  for  official  use  by  the  County  Commissioners, 
except  as  hereinafter  provided.  He  shall  keep  in  bound 
volumes  a  complete  and  faithful  record  of  all  his  official  acts, 
and  give  copies  thereof  to  all  persons  desiring  them,  on  pay- 
ment of  the  legal  fees. 

<jl44.— Books  to  be  kept  by  Clerks. 

Each  clerk  shall  keep  the  following  books : 
1.  A  docket  of  all  writs,  summons  or  other  original  pro- 
cesses issued b3' him, or  returned  to  his  office;  this  docket  shall 
contain  a  brief  note  of  every  proceeding  whatever  in  each 
action,  up  to  the  final  judgment  inclusive. 


54  THE  CODE  OF 

2.  A  Judgment  docket  in  which  the  substance  of  the 
judgment  shall  be  recorded,  and  every  proceeding  subsequent 
thereto,  noted. 

3.  A  docket  of  all  issues  of  fact  joined  upon  the  pleadings, 
and  of  all  other  matters  for  hearing  before  the  Judge  at  a 
regular  term  of  the  court,  a  copy  of  which  shall  be  furnished 
to  the  Judge  at  the  commencement  of  each  term. 

4.  An  alphabetical  index  according  to  the  names  of  the 
plaintiffs,  of  all  final  judgments  in  civil  actions  rendered  in 
the  court,  with  the  dates  and  numbers  thereof,  and  also  of 
all  final  judgments  rendered  in  other  courts,  and  authorized 
by  law,  to  be  entered  on  his  Judgment  Docket. 

5.  A  docket  of  all  criminal  actions,  containing  a  note  of 
every  proceeding  in  each. 

§145.— Books  to  be  famished  by  Secretary  of  State. 

The  books  specified  in  the  above  section,  shall  be  supplied 
to  the  clerks  of  the  several  counties  by  the  Secretary  of 
State,  at  the  expense  of  the  State,  and  the  Secretary  shall, 
;as  soon  as  possible,  transmit  an  account  thereof  to  the  pre- 
siding officer  of  the  County  Commissioners,  in  order  that 
the  price  may  be  levied  in  the  county  taxes ;  and  also  to 
the  Auditor  of  Public  Accounts,  who  shall  add  the  same  to 
the  taxes  of  the  respective  counties  and  receive  and  account 
for  it,  as  for  other  taxes.  The  commissioners  of  any  county 
failing  to  cause  such  sum.  to  be  levied,  with  the  other  county 
taxes,  shall  be  guilty  of  a  misdemeanor. 

§14tii — Papers  in  each  action  to  be  kept  separate,  and  filed  together. 

•  They  shall  keep  the  papers  in  each  action,  in  a  separate 
roll  or  bundle,  and  at  its  termination,  attach  them  together, 
properly  label,  and  file  them  in  the  order  of  the  date  of  the 
final  judgment. 

§147. — Solicitor  to  examine  records. 

At  every  regular  term  of  the  Superior  Court,  the  Solicitor 
for  the  judicial  district  shall  inspect  the  office  of  the  clerk, 
and  report  to  the  court  in  writing.     If  any  clerk,  after  being 


CIVIL  PROCEDURE.  55 

furnished  with  the  necessary  books,  shall  fail  to  keep  them 
up,  as  required  by  law,  he  shall  be  guilty  of  a  misdemeanor, 
and  the  solicitor  shall  cause  him  to  be  prosecuted  for  the 
same.  If  any  solicitor  shall  fail  or  neglect  to  perform  the 
duty  hereby  imposed  on  him,  he  shall  be  liable  to  a  penalty 
of  five  hundred  dollars  to  any  person  who  shall  sue  lor  the 
same. 


TITLE    IX. 


OP   THE   PROVISIONAL   REMEDIES   IN   CIVIL   ACTIONS. 

CHAPTER  I.  Arrest  and  Bail. 

"  II.  Claim  and  dellyery  of  personal  property. 

"  III.  Injunction. 

«  IT.  Attachment. 

«<  V.  Provisional  remedies. 

CHAPTER  I. 

ARREST   AND   BAIL. 

§148.— No  person  to  be  arrested  exeept  as  prescribed. 

No  person  shall  be  arrested  in  a  civil  action,  except  as 
prescribed  by  this  act;  but  this  provision  shall  not  apply  to 
proceedings  for  contempt. 

§149.— In  what  cases. 

The  defendant  may  be  arrested,  as  hereinafter  prescribed, 
in  the  following  cases : 

1.  In  an  action  for  the  recovery  of  damages,  on  a  cause  of 
action  not  arising  out  of  contract,  where  the  defendant  is 
not  a  resident  of  the  State,  or  is  about  to  remove  therefrom, 
or  where  the  action  is  for  an  injury  to  person  or  character,  or 
for  injuring,  or  for  wrongfully  taking,  detaining  or  convert- 
ing property. 


56  THE  CODE  OF 

2.  In  an  action  for  a  fine  on  penalty,  or  on  a  promise  to 
marry,  or  for  money  received,  or  for  property  embezzled  or 
fraudulently  misapplied,  by  a  public  officer,  or  by  an  attor- 
ney, solicitor  or  counsellor,  or  by  an  officer  or  agent  of  a 
corporation  or  banking  association,  in  the  course  of  his- 
employment  as  such,  or  by  any  factor,  agent,  broker  or  other 
person  in  a  fiduciary  capacity,  or  for  any  misconduct  or 
neglect  in  office,  or  in  a  professional  employment. 

3.  In  an  action  to  recover  the  possession  of  personal  pro- 
perty unjustly  detained,  where  the  property,  or  any  part 
thereof,  has  been  concealed,  removed  or  disposed  of,  so  that 
it  cannot  be  found  or  taken  by  the  sheriff,  and  with  the 
intent  that  it  should  not  be  so  found  or  taken,  or  with  the 
intent  to  deprive  the  plaintiff  of  the  benefit  thereof. 

4.  When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt,  or  incurring  the  obligation  for  which  the 
action  is  brought,  or  in  concealing  or  disposing  of  the  pro- 
perty for  the  taking,  detention  or  conversion  of  which,  the 
action  is  brought,  or  when  the  action  is  brought  to  recover 
damages  for  fraud  or  deceit. 

5.  When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  hi& 
creditors. 

But  no  female  shall  be  arrested  in  any  action,  except  for  a 
wilful  injury  to  person,  character  or  property. 

§150. — Order  for  arrest,  by  whom  made. 

Ah  order  for  the  arrest  of  the  defendant  must  be  obtained 
from  the  Court  in  which  the  action  is  brought,  or  from  a 
Judge  thereof. 

§151.— Affidavit  to  obtain  order.    To  what  actions  this  chapter  applies. 

The  order  may  be  made  where  it  shall  appear  to  the  Court, 
or  Judge  thereof,  by  the  affidavit  of  the  plaintiff,  or  of  any  other 
person,  that  a  sufficient  cause  of  action  exists,  and  that  the 
case  is  one  of  those  mentioned  in  section  one .  hundred  and 
forty-nine. 


CIVIL  PROCEDURE.  57 

The  provisions  of  this  chapter  shall  apply  to  all  actions 
included  within  the  provisions  of  section  one  hundred  and 
forty-nine,  which  shall  be  commenced  after  the  ratification 
of  this  Act. 


§152. — Set arity  by  plaintiff  before  order  of  arrest. 

Before  making  the  order,  the  Judge  shall  require  a  writ- 
ten undertaking  on  the  part  of  the  plaintiff,  with  sureties, 
to  the  effect  that  if  the  defendant  recover  judgment,  the 
plaintiff  will  pay  all  damages  which  he  may  sustain  by  rea- 
son of  the  arrest,  not  exceeding  the  sum  specified  in  the 
undertaking,  which  shall  be  at  least  one  hundred  dollars. 

§153. — Order,  when  made,  aud  its  form — Time  to  answer  or  to  move  to  vacate. 

The  order  may  be  made  to  accompany  the  summons,  or 
issue  at  any  time  afterwards,  before  judgment.  It  shall 
require  the  sheriff  of  the  county  where  the  defendant  may 
be  found,  forthwith  to  arrest  him  and  hold  him  to  bail  in  a 
specified  sum,  and  to  return  the  order,  at  a  place  and  time 
therein  mentioned,  to  the  clerk  of  the  court  in  which  the 
action  is  brought,  and  notice  of  such  return  shall  be  served 
on  the  plaintiff  or  his  attorney  as  prescribed  in  section 
eighty. 

But  said  order  of  arrest  shall  be  of  no  avail,  and  shall  be , 
vacated  or  set  aside  on  motion,  unless  the  same  is  served 
upon  the  defendant,  as  provided  by  law,  before  the  docket- 
ing of  any  judgment  in  the  action;  and  the  defendant  shall 
have  twenty  days,  after  the  service  of  the  order  of  arrest,  in 
which  to  answer  the  complaint  in  the  action,  and  to  move 
to  vacate  the  order  of  arrest,  or  to  reduce  the  amount  of 
bail. 

§154. — Affidavit  and  order  to  be  delivered  to  sheriff,  and  copy  to  deTcndant. 

The  affidavit  and  order  of  arrest  shall  be  delivered  to  the 
sheriff,  who,  upon  arresting  the  defendant,  shall  deliver  to 
him  a  copy  thereof. 


58  THE  CODE  OF 

§155. — Arrest,  how  made. 

The  sheriff  shall  execute  the  order  by  arresting  the  defen- 
dant, and  keeping  him  in  custody  until  discharged  by  law; 
and  may  call  the  power  of  the  county  to  his  aid  in  the  exe- 
cution of  the  arrest,  as  in  case  of  process. 

§156. — Defendant  to  be  discharged  on  bail  or  deposit. 

The  defendant,  at  any  time  before  execution,  shall  be 
discharged  from  the  arrest,  either  upon  giving  bail,  or  upon 
depositing  the  amount  mentioned  in  the  order  of  arrest,  as 
provided  in  this  chapter. 

§157. — Bali,  how  given. 

The  defendant  may  give  bail,  by  causing  a  written  under- 
taking to  be  executed  by  two  or  more  sufficient  bail,  stating 
their  places  of  residence  and  occupations,  to  the  effect  that 
the  defendant  shall  at  all  times  render  himself  amenable  to 
the  process  of  the  court,  during  the  pendency  of  the  action, 
and  to  such  as  may  be  issued  to  enforce  the  judgment  there- 
in, or  if  he  be  arrested  for  the  cause  mentioned  in  the  third 
sub- division  of  section  one  hundred  and  forty -nine,  an 
undertaking  to  the  same  effect  as  that  provided  by  section 
one  hundred  and  eighty-one. 

§158.— Surrender  of  defendant. 

At  any  time  before  final  judgment  against  them,  the  bail 
may  surrender  the  defendant  in  their  exoneration,  or  he  may 
surrender  himself  to  the  sheriff  of  the  county  where  he  was 
arrested,  in  the  following  manner : 

1.  A  certified  copy  of  the  undertaking  of  the  bail  shall 
be  delivered  to  the  sheriff,  who  shall  detain  the  defendant 
in  his  custody  thereon,  as  upon  an  order  of  arrest,  and 
shall,  by  a  certificate  in  writing,  acknowledge  the  sur- 
render ; 

2.  Upon  the  production  of  a  copy  of  the  undertaking  and 
sheriff's  certificate,  the  Court,  or  a  Judge  thereof  may,  upon 
a  notice  to  the  plaintiff  of  eight  days,  with  a  copy  of  the 
certificate,  oider  that  the  bail  be  exonerated;  and  on  filing 


CIVIL  PROCEDURE.  5i) 

the  order  and  the  papers  used  on  said  application,  they  shall 
be  exonerated  accordingly.  But  this  section  shall  not  apply 
to  an  arrest  for  cause  mentioned  in  subdivision  three  of  sec- 
tion one  hundred  and  forty-nine,  so  as  to  discharge  the  bail 
from  an  undertaking  given  to  the  effect  provided  by  section 
one  hundred  and  eighty-one. 

§159. — Sarrender  of  defendant. 

For  the  purpose  of  surrendering  the  defendant,  the  bail, 
at  any  time  or  place,  before  they  are  finally  charged,  may 
themselves  arrest  him,  or  by  a  written  authority,  indorsed 
on  a  certified  copy  of  the  undertaking,  may  empower  any 
person  of  suitable  age  and  discretion  to  do  so. 

?  160.— Bail,  bow  proceeded  against. 

In  case  of  failure  to  comply  with  the  undertaking,  the 
bail  may  be  proceeded  against,  by  action  only. 

?'  161. — Ball  how  exon  erated. 

The  bail  may  be  exonerated,  either  by  the  death  of  the 
defendant,  or  his  imprisonment  in  a  State  prison,  or  by  his 
legal  discharge  from  the  obligation  to  render  himself  amen- 
able to  the  process,  or  by  his  surrender  to  the  sheriff  of  the 
ccunty  where  he  was  arrested,  in  execution  thereof,  at  any 
time  before  final  judgment  against  the  bail. 

i\(ii. — Delivery  of  undertaking  to  plaintiff,  and  its  acceptance  or  rejection  by 
him. 

Within  the  time  limited  for  that  purpose,  the  sheriff  shall 
deliver  the  order  of  arrest  to  the  clerk  of  the  court  in  which 
the  suit  is  brought,  with  his  return  indorsed,  and  a  certified 
copy  of  the  undertaking  of  the  bail,  and  notify  the  plaintiff 
or  his  attorney  thereof.  The  plaintiff,  within  ten  days  there- 
after, may  serve  upon  the  sheriff  a  notice  that  he  does  not 
accept  the  bail,  or  he  shall ;  be  deemed  to  have  accepted  it, 
and  the  sheriff  shall  be  exonerated  from  liability. 


60  THE  CODE  OF 

§163.— Notice  of  justification— New  bail. 

On  the  receipt  of  such  notice,  the  sheriff  or  defendant 
may,  within  ten  days  thereafter,  give  to  the  plaintiff,  or  his 
attorney,  notice  of  the  justification  of  the  same  or  other  bail 
(specifying  the  places  of  residence  and  occupation  of  the 
latter)  before  the  court,  or  the  Judge  thereof,  at  a  specified 
time  and  place;  the  time  to  be  not  less  than  five  nor  more 
than  ten  days  thereafter.  In  case  other  bail  be  given,  there 
shall  be  a  new  undertaking,  in  the  form  prescribed  in  section 
one  hundred  and  fifty-seven. 

§164 — Qualification  of  bail. 

The  qualifications  of  bail  must  be  as  follows : 

1.  Each  of  them  must  be  a  resident  and  householder  or 
freeholder  within  the  State. 

2.  They  must  each  be  worth  the  amount  specified  in  the 
order  of  arrest,  exclusive  of  property  exempt  from  execu- 
tion ;  but  the  Judge,  on  justification,  may  allow  more  than 
two  bail  to  justify  severally  in  amounts  less  than  that 
expressed  in  the  order,  if  the  whole  justification  be  equiva- 
lent to  that  of  two  sufficient  bail. 

§165.— Jnstification  of  bail. 

For  the  purpose  of  justification,  each  of  the  bail  shall 
attend  before  the  court  or  the  Judge,  or  a  Justice  of  the 
Peace,  at  the  time  and  place  mentioned  in  the  notice,  and 
may  be  examined  on  oath,  on  the  part  of  the  plaintiff, 
touching  his  sufficiency,  in  such  a  manner  as  the  Court,  or 
Judge  in  his  discretion,  may  think  proper.  The  examina- 
tion shall  be  reduced  to  writing,  and  subscribed  by  the 
bail,  if  required  by  the  plaintiff 

§166.— Allowance  of  bail. 

If  the  Court  or  Judge  find  the  bail  sufficient,  he  shall 
annex  the  examination  to  the  undertaking,  indorse  his 
allowance  thereon,  and  cause  them  to  be  filed  with  the 
clerk;  and  the  sheriff  shall  thereupon  be  exonerated  from 
liability. 


CIVIL  PROCEDURE.  Gl 

§167.— Deposit  with  the  sheriff. 

The  defendant  may,  at  the  time  of  his  arrest,  instead  of 
giving  bail,  deposit  with  the.  sheriff  the  amount  mentioned 
in  the  order.  The  sheriff  shall  thereupon  give  the  defen- 
dant a  certificate  of  the  deposit,  and  the  defendant  shall  be 
discharged  out  of  custody. 

§168. — Payment  of  deposit  into  eonrt. 

The  sheriff  shall,  within  four  days  after  the  deposit,  pay 
the  same  into  court,  and  shall  take  from  the  officer  receiving 
the  same,  two  certificates  of  such  payment,  the  one  of  which 
he  shall  deliver  to  the  plaintiff,  and  the  other  to  the  defen- 
dant. For  any  default  in  making  such  payment,  the  same 
proceedings  may  be  had  on  the  official  bond  of  the  sheriff,  to 
collect  the  sum  deposited,  as  in  other  cases  of  delinquency. 

$169.— Substituting  bail  for  deposit*. 

If  money  be  deposited,  as  provided  in  the  last  two  sec- 
tions, bail  may  be  given,  and  justified  upon  notice,  as  pre- 
scribed in  section  one  hundred  and  sixty,  any  time  before 
judgment;  and  thereupon  the  Judge  shall  direct,  in  the 
order  of  allowance,  that  the  money  deposited  be  refunded, 
by  the  sheriff,  to  the  defendant,  and  it  shall  be  refunded 
accordingly. 

§170. — Deposit,  how  disposed  tff. 

When  money  shall  have  been  so  deposited,  if  it  remain  on 
deposit  at  the  time  of  an  order  or  judgment  for  the  payment 
of  money  to  the  plaintiff,  the  clerk  shall,  under  the  direction 
of  the  Court,  apply  the  same  in  satisfaction  thereof,  and 
after  satisfying  the  judgment,  shall  refund  the  surplus,  if 
any,  to  the  defendant.  If  the  judgment  be  in  favor  of  the 
defendant,  the  clerk  shall  refund  to  him  the  whole  sum 
deposited  and  remaining  unapplied. 

§171. — Sheriff,  when  liable  as  bail. 

If,  after  being  arrested,  the  defendant  escape  or  be  res- 
cued, or  bail  be  not  given  or  justified,  or  a  deposit  be  not 


62  THE  CODE  OF 

made  instead  thereof,  the  sheriff  shall  himself  be  liable  as 
bail.  But  he  may  discharge  himself  from  such  liability,  by 
the  giving  and  justification  of  bail,  as  provided  in  sections 
one  hundred  and  sixty-three,  one  hundred  and  sixty-four  one 
hundred  and  sixty-five,  and  one  hundred  and  sixty-six,  at  any 
time  before  process  against  the  person  of  the  defendant,  to 
enforce  an  order  or  judgment  in  the  action. 

§172. — Proceedings  on  judgment  against  sheriff. 

If  a  judgment  be  recovered  against  the  sheriff,  upon  his 
liability  as  bail,  and  an  execution  thereon  be  returned  unsat- 
isfied, in  whole  or  in  part,  the  same  proceedings  may  be 
had  on  the  official  bond  of  the  sheriff,  to  collect  the  deficiency, 
as  in  other  cases  of  delinquency. 

£173.— Bail  liable  to  sheriff. 

The  bail  taken  upon  the  arrest,  shall,  unless  they  justify, 
or  other  bail  be  given  or  justified,  be  liable  to  the  sheriff  by 
action,  for  damages  which  he  may*  sustain  by  reason  of  such 
omission. 

§174. — Vacating  order  of  arrest,  or  reducing  bail. 

A  defendant  arrested  may  at  any  time  before  judgment,, 
apply,  on  motion,  to  vacate  the  order  of  arrest,  or  to  reduce 
the  amount  of  bail. 

§175. — Affidavits  on  motion. 

If  the  motion  be  made  upon  affidavits  on  the  part  of  the 
defendant,  but  not  otherwise,  the  plaintiff  may  oppose  the 
same  by  affidavits,  or  other  proofs,  in  addition  to  those  oni 
which  the  order  of  arrest  was  made. 


CIVIL  PROCEDURE.  63 

CHAPTER  II. 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

£176. — Delivery  of  personal  property. 

The  plaintiff,  in  an  action  to  recover  the  possession  of  per- 
sonal property,  may,  at  the  time  of  issuing  the  summons,  or 
at  any  time  before  answer,  claim  the  immediate  delivery  of 
such  property,  as  provided  in  this  chapter. 

£177.— Affidavits  and  Its  requisites. 

Where  a  delivery  is  claimed  an  affidavit  must  be  made, 
before  the  clerk  of  the  court  in  which  the  action  is  required 
to  be  tried,  by  sections  sixty-six,  sixty-seven  and  sixty-eight, 
by  the  plaintiff,  or  some  one  in  his  behalf,  showing : 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed 
(particularly  describing  it,)  or  is  lawfully  entitled  to  the 
possession  thereof,  by  virtue  of  a  special  property  therein, 
the  facts  in  respect  to  which  shall  be  set  forth ; 

2.  That  the  property  is  wrongfully  detained  by  the  defen- 
dant; 

3.  The  alleged  cause  of  the  detention  thereof,  according 
to  his  best  knowledge,  information,  and  belief; 

4.  That  the  same  has  not  been  taken  for  a  tax,  assessment, 
or  fine,  pursuant  to  a  statute ;  or  seized  under  an  execution 
or  attachment  against  the  property  of  the  plaintiff;  or,  if  so 
seized,  that  it  is,  by  statute,  exempt  from  such  seizure ;  and 

5.  The  actual  value  of  the  property. 

£178.— Requisition  to  sheriff  to  take  and  deliver  the  property. 

The  clerk  of  the  court  shall,  thereupon,  by  an  indorse- 
ment in  writing  upon  the  affidavit,  require  the  sheriff  of  the 
county  where  the  property  claimed  may  be,  to  take  the  same 
from  the  defendant  and  deliver  it  to  the  plaintiff;  provided, 
the  plaintiff  shall  give  the  undertaking  prescribed  in  the 
next  section. 


64'  THE  CODE  OF 

§179 — Security  by  plaintiff. 

Upon  the  receipt  of  the  order  from  the  clerk  with  a  writ- 
ten undertaking  executed  by  one  or  more  sufficient  sureties, 
approved  by  the  sheriff,  to  the  effect  that  they  are  bound  in 
double  the  value  of  the  property,  as  stated  in  the  affidavit 
for  the  prosecution  of  the  action,  for  the  return  of  the  pro- 
perty to  the  defendant,  if  return  thereof  be  adjudged,  and 
for  the  payment  to  him  of  such  sum  as  may,  for  any  cause, 
be  recovered  against  the  plaintiff,  the  sheriff  shall  forthwith 
take  the  property  described  in  the  affidavit,  if  it  be  in  the 
possession  of  the  defendant  or  his  agent,  and  retain  it  in  his 
custody.  He  shall  also,  without  delay,  serve  on  the  defen- 
dant a  copy  of  the  affidavit,  notice,  and  undertaking,  by 
delivering  the  same  to  him  personally,  if  he  can  be  found, 
or  to  his  agent,  from  whose  possession  the  property  is  taken; 
or,  if  neither  can  be  found,  by  leaving  them  at  the  usual 
place  of  abode  of  either,  with  some  person  of  suitable  age 
and  discretion. 

§180. — Exception  to  sureties. 

The  defendant  may,  within  three  days  after  the  service  of 
a  copy  of  the  affidavit  and  undertaking,  give  notice  to  the 
sheriff  personally,  or  by  leaving  a  copy  at  his  office  in  the 
county  town  of  the  county,  or  if  he  have  no  such  office,  at 
the  office  of  the  clerk  of  thte  court  that  he  excepts  to  the 
sufficiency  of  the  sureties.  If  he  fail  to  do  so,  he  shall  be 
deemed  to  have  waived  all  objection  to  them.  When  the 
defendant  excepts,  the  sureties  shall  justify  on  notice,  in  like 
manner  as  upon  bail  on  arrest.  And  the  sheriff  shall  be 
responsible  for  the  sufficiency  of  the  sureties,  until  the 
objection  to  them  is  either  waived  as  above  provided,  or 
until  they  shall  justify,  or  new  sureties  shall  be  substituted 
and  justify.  If  the  defendant  except  to  the  sureties,  he 
cannot  reclaim  the  property,  as  provided  in  the  next  section. 

§181.— Defendant  when  entitled  to  re-delivery. 

At  any  time  before  the  delivery  of  the  property  to  the 
plaintiff,  the  defendant  may,  if  he  do  not  except  to  the 


CIVIL  PROCEDURE.  65 

sureties  of  the  plaintiff,  require  the  return  thereof,  upon 
giving  to  the  sheriff  a  written  undertaking',  executed  by  two 
or  more  sufficient  sureties,  to  the  effect  that  they  are  bound 
in  double  the  value  of  the  party,  as  stated  in  the  affidavit  of 
the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff,  if  such 
delivery  be  adjudged,  and  for  the  payment  to  him  of  such 
sum  as  may,  for  any  cause,  be  recovered  against  the  defen- 
dant. If  a  return  of  the  property  be  not  so  required,  within 
three  days  after  the  taking  and  service  of  notice  to  the 
defendant,  it  shall  be  delivered  to  the  plaintiff,  except  as  pro- 
vided in  section  one  hundred  and  eighty-six. 

^182. — Justification  of  defendant's  snreties. 

The  defendant's  sureties,  upon  a  notice  to  the  plaintiff  of 
not  less  than  two  nor  more  than  six  days,  shall  justify  before 
a  Judge  or  Justice  of  the  Peace,  in  the  same  manner  as 
upon  bail  on  arrest;  upon  such  justification,  the  sheriff  shall 
deliver  the  property  to  the  defendant.  The  sheriff  shall  be 
responsible  for  the  defendant's  sureties,  until  they  justify,  or 
until  justification  is  completed  or  expressly  waived,  and  may 
retain  the  property  until  that  time ;  but  if  they,  or  others  in 
their  place,  fail  to  justify  at  the  time  and  place  appointed, 
he  shall  deliver  the  property  to  the  plaintiff. 

§183. — Qualifications  and  justification  of  sureties. 

The  qualifications  of  sureties,  and  their  justification,  shall 
be  as  are  prescribed  by  sections  one  hundred  and  sixty  four 
and  one  hundred  and  and  sixty-five,  in  respect  to  bail  upon 
an  order  of  arrest. 

§184.— Property,  how  taken  when  concealed  in  building  or  iudosure. 

If  the  property,  or  any  part  thereof,  be  concealed  in  a 
building  or  inclosure,  the  sheriff  shall  publicly  demand  its 
delivery.  If  it  be  not  delivered,  he  shall  cause  the  building 
or  inclosure  to  be  broken  open,  and  take  the  property  into 
his  possession;  and,  if  necessary,  he  may  call  to  his  aid  the 
power  of  his  county. 
5 


66  THE  CODE  OF 

§185. — Property,  how  kept. 

When  the  sheriff  shall  have  taken  property,  as  in  this 
chapter  provided,  he  shall  keep  it  in  a  secure  place,  and 
deliver  it  to  the  party  entitled  thereto,  upon  receiving  his 
lawful  fees  for  taking,  and  his  necessary  expenses  for  keep- 
ing the  same. 

<jl  86.— Claim  of  property  by  third  person. 

If  the  property  taken  be  claimed  by  any  other  person  than 
the  defendant  or  his  agent,  and  such  person  shall  make  affi- 
davit of  his  title  thereto,  and  right  to  the  possession  thereof, 
stating  the  grounds  of  such  right  and  title,  and  serve  the  same 
upon  the  sheriff,  the  sheriff  shall  not  be  bound  to  keep  the 
property,  or  deliver  it  to  the  plaintiff,  unless  the  plaintiff,  on 
demand  of  him  or  his  agent,  shall  indemnify  the  sheriff 
against  such  claim,  by  an  undertaking  executed  by  two 
sufficient  sureties,  accompanied  by  their  affidavits,  that  they 
are  each  worth  double  the  value  of  the  property,  as  specified 
in  the  affidavit  of  the  plaintiff,  and  freeholders  and  house- 
holders of  the  county.  And  no  claim  to  such  property,  by 
any  other  person  than  the  defendant  or  his  agent,  shall  be 
valid  against  the  sheriff,  unless  made  as  aforesaid;  and  not- 
withstanding such  claim,  when  so  made,  he  may  retain  the 
property  a  reasonable  time  to  demand  such  indemnity. 

§187.— Notice  and  affidavit,  when  aud  where  to  be  filed. 

The  sheriff  shall  file  the  notice  and  affidavit,  with  his 
proceedings  thereon,  with  the  clerk  of  the  court  in  which 
the  action  is  pending,  within  twenty  days  after  taking  the 
property  mentioned  therein. 


CHAPTER  III. 

INJUNCTION. 


<>1S8- — Injunction  by  order. 

The    writ    of    injunction,    as    a   provisional   remedy,    is 
abolished,  and  an  injunction  by  order,  is  substituted  there- 


CIVIL  PROCEDURE.  67 

for.  The  order  may  be  made  by  any  Judge  of  a  Superior 
Court,  in  the  cases  provided  in  the  next  section,  and,  may 
be  enforced  as  the  order  of  the  court.  Upon  such  order  it 
shall  be  issued  by  the  clerk  of  the  court,  in  which  the  action 
is  required  to  be  tried. 

§189— Injunctions,  in  what  eases. 

[1.]  When  it  shall  appear  by  the  complaint  that  the 
plaintiff  is  entitled  to  the  relief  demanded,  and  such  relief, 
or  any  part  thereof,  consists  in  restraining  the  commission, 
or  continuance,  of  some  act,  the  commission  or  continuance 
of  which,  during  the  litigation,  would  produce  injury  to  the 
plaintiff;  or  [2]  when,  during  the  litigation,  it  shal.l  appear 
that  the  defendant  is  doing,  or  threatens,  or  is  about  to  do, 
or  procuring  or  suffering  some  act  to  be  done  in  violation  of 
the  plaintiff's  rights  respecting  the  subject  of  the  action,  and 
tending  to  render  the  judgment  ineffectual,  a  temporary 
injunction  may  be  granted  to  restrain  such  act.  [3]  And 
where,  during  the  pendency  of  an  action,  it  shall  appear  by 
affidavit  that  the  defendant  threatens,  or  is  about  to  remove 
or  dispose  of  his  property,  with  intent  to  defraud  his  credi- 
tors, a  temporary  injunction  may  be  granted  to  restrain  such 
removal  or  disposition. 

■,190.— At  what  time  it  may  be  granted.    Copy  of  affidavit  to  be  served. 

The  injunction  may  be  granted  at  the  time  of  commen- 
cing the  action,  or  at  any  time  afterwards,  before  judgment, 
upon  its  appearing  satisfactorily  to  the  Judge,  by  the  affida- 
vit of  the  plaintiff,  or  of  any  other  person,  that  sufficient 
grounds  exist  therefor.  A  copy  of  the  affidavit  must  be 
served  with  the  injunction. 

$191.— Injunction  after  answer. 

An  injunction  shall  not  be  allowed  after  the  defendant 
shall  have  answered,  unless  upon  notice,  or  upon  an  order 
to  show  cause;  but  in  such  case  the  defendant  may  be 
restrained  until  the  decision  of  the  Judge  granting  or  refus- 
ing the  injunction. 


08  THE  CODE  OF 

£i92. — Security  upon  injunction.    Damages. 

Upon  granting  an  order  for  an  injunction,  the  Judge  shall 
require  as  a  condition  precedent  to  the  issuing  thereof,  that 
the  clerk  shall  take  from  the  plaintiff  a  written  undertaking, 
with  sufficient  sureties  to  be  justified  before,  and  approved 
by  the  said  clerk  or  by  the  Judge,  in  an  amount  to  be  fixed 
by  the  Judge,  to  the  effect  that  the  plaintiff  will  pay  to  the 
party  enjoined,  such  damages,  not  exceeding  an  amount  to 
be  specified,  as  he  may  sustain 'by  reason  of  the  injunction, 
if  the  Court  shall  finally  decide  that  the  plaintiff  was  not 
entitled  thereto.  The  damages  may  be  ascertained  by  a 
reference,  or  otherwise,'  as  the  Jtfdge  shall  direct. 

vjl93 — Order  to  show  cause-    Restraint  in  meantime. 

If  the  Judge  deem  it  proper  that  the  defendant,  or  any  of 
several  defendants,  should  be  heard  before  granting  the 
injunction,  an  order  may  be  made  requiring  cause  to  be 
shown,  at  a  specified  time  and  place,  why  the  injunction 
should  not  be  granted;  and  the  defendant  may,  in  the 
meantime,  be  restrained. 

v^lM—- Security  upon  injunction  to  suspend  business  of  corporation. 

An  injunction  to  suspend  the  general  and  ordinary  busi- 
ness of  a  corporation  shall  not  be  granted  without  due  notice 
of  the  application  therefor,  to  the  proper  officers  of  the  cor- 
poration, except  where  the  State  is  a  party  to  the  proceed- 
ing, unless  the  plaintiff  shall  give  a  written  undertaking 
executed  by  two  sufficient  sureties,  to  be  approved  by  the 
Judge,  to  the  effect  that  the  plaintiff  will  pay  all  damages, 
not  exceeding  the  sum  to  be  mentioned  in  the  undertaking, 
which  such  corporation  may  sustain  by  reason  of  the  injunc- 
tion, if  the  Court  shall  finally  decide  that  the  plaintiff  was 
not  entitled  thereto.  The  damages  may  be  ascertained  by 
a  reference,  or  otherwise,  as  the  Court  shall  direct. 

^195.— Motion  to  vacate  or  modify  injunction. 

If  the  injunction  be  granted  by  a  Judge  of  the  Court, 
without  notice,  the  defendant,  at  any  time  before  the  trial, 


CIVIL  PROCEDURE.  69 

may  apply,  upon  notice,  to  a  Judge  of  the  Court  in  which 
the  action  is  brought,  to  vacate  or  modify  the  same.  The 
application  may  be  made  upon  the  complaint  and  the  affi- 
davits on  which  the  injunction  was  granted,  or  upon  the 
affidavits  on  the  part  of  the  defendant,  with  or  without  the 
answer. 

§198 — Affidavits  on  motion. 

If  the  apr)lication  be  made  upon  affidavits  on  the  part  of 
the  defendant,  but  not  otherwise,  the  plaintiff  may  oppose 
the  same  by  affidavits  or  other  proofs,  in  addition  to  those 
on  which  the  injunction  was  granted. 


CHAPTER  IV. 


ATTACHMENT. 


§197.— Property  of  foreign  corporations!,  am!  of  uon-resideat,  or  absconding, 
or  conceded  defendants,  may  be  attached. 

In  an  action  arising  on  contract,  for  the  recovery  of  monej' 
only,  or  in  an  action  for  the  wrongful  conversion  of  per- 
sonal property,  against  a  corporation  created  by,  or  under. 
the  laws  of  any  other  State,  government  or  country,  or 
against  a  defendant  who  is  not  a  resident  of  this  State,  or 
against  a  defendant  who  has  absconded  or  concealed  him- 
self, or  whenever  any  person  or  corporation  is  about  to 
remove  any  of  his,  or  its  property,  from  this  State,  or  has 
assigned,  disposed  of,  or  secreted,  or  is  about  to  assign, 
dispose  of,  or  secrete,  any  of  his,  or  its,  property,  with  intent 
to  defraud  creditors,  as  hereinafter  mentioned,  the  plaintiff 
at  the  time  of  issuing  the  summons,  or  [at]  any  time  afterwards, 
may  have  the  property  of  such  defendant  or  corporation 
attached,  in  the  manner  hereinafter  prescribed,  as  a  security 
for  the  satisfaction  of  such  judgment  as  the  plaintiff  may 
recover;  and  for  the  purposes  of  this  seclion,  an  action  shall 


70  THE  CODE  OF 

Jifi  deemed  commenced,  when  the  summons  is  issued;  Pro- 
vided however,  that  personal  service  of  such  summons  shall 
be  made,  or  .publication  thereof  commenced  within  thirty 
days  after  obtaining  a  warrant  of  attachment. 

§198.— Publication  to  be  made 

The  plaintiff  obtaining  a  warrant  of  attachment  shall 
within  the  time  above  prescribed,  cause  publication  to  be 
made,  at  least  once  a  week  for  four  successive  weeks,  in 
some  newspaper  published  in  the  county  in  which  the 
warrant  is  returnable ;  or  if  there  be  none  such  published, 
then  in  one  published  within  the  judicial  district,  in  which 
such  county  is,  or  if  there  be  none  such  published,  then  in 
any  newspaper  published  in  this  State.  Said  publication 
shall  state  the  names  of  the  parties,  the  amount,  and  in  a 
brief  way,  the  nature  of  the  demand,  the  time  and  place  to 
which  the  warrant  is  returnable,  and  shall  require  the 
defendant  to  appear  then  and  there  and  answer  the  com- 
plaint. It  the  place  of  residence  of  the  defendant  be  known, 
the  plaintiff  shall  send  to  him  by  mail,  a  copy  of  such  pub- 
lication ;  and  the  court  in  which  the  suit  is  pending  may, 
at  any  time,  order  notice  to  be  sent  by  mail  to  any  place,  in 
which  the  defendant  may  be  supposed  to  reside  or  be. 

<il99- — Warrant,  by  whom  granted. 

If  the  action  be  not  founded  on  a  contract,  or  if  the  sum 
demanded  exceeds  two  hundred  dollars,  a  warrant  of  attach- 
ment must  be  obtained  from  the  Judge  of  the  judicial  dis- 
trict, within  some  county  of  which,  the  cause  of  action 
arose;  or,  in  case  the  defendant  is  a  foreign  corporation, 
within  some  county  of  which,  it  usually  did  business,  or 
within  some  county  of  which,  the  defendant  resided  or  did 
business  within  six  months  next  preceding  the  issuing  of 
the  summons;  or  from  the  Clerk  of  the  Superior  Court  of 
any  county  within  said  district.  It  shall  be  made  return- 
able to  the  Superior  Court  of  a  county,  in  which  the  cause 
of  action  arose,  or  in  which  the  defendant  resided  or  did 


CIVIL  PROCEDURE.  71 

business,  within  six  months  next  preceding  the  issuing  of 
the  summons,  or  in  which  the  property  of  the  defendant 
sought  to  be  attached,  or  some  part  of  it,  is  at  the  issuing 
of  the  summons,  or  in  case  the  defendant  is  a  foreign  cor- 
poration, in  which  it  usually  did  business. 

s}200.— When  warrant  granted  by  Jnsticc  of  the  Peace. 

If  the  action  be  founded  on  contract,  and  the  sum 
demanded  does  not  exceed  two  hundred  dollars,  the  warrant 
of  attachment  must  be  obtained  from,  and  made  returnable 
before  ,some  Justice  of  the  Peace  of  a  county,  to  the  Superior 
Court  'of  which  it  might  have  been  returnable  under  the 
preceeding  section,  had  the  sum  demanded,  exceeded  two 
hundred  dollars,  or  had  the  action  not  have  been  founded 
•on  contract. 

^201.— In  what  cases  warrants  may  he  issned— Affidavits  to  be  tiled. 

The  warrant  may  be  issued  whenever  it  shall  appear  by 
affidavit,  that  a  cause  of  action  exists  against  such  defen- 
dant, specifying  the  amount  of  the  claim  and  the  grounds 
thereof,  and  that  the  defendant  is  either  a  foreign  corpora- 
tion, or  not  a  resident  of  this  State,  or  has  departed  there- 
from with  intent  to  defraud  his  creditors  or  to  avoid  the  ser- 
vice of  a  summons,  or  keeps  himself  concealed  therein  with 
like  intent,  or  that  such  corporation  or  person  has  removed, 
or  is  about  to  remove,  any  of  his  or  its  property  from  this 
State,  with  intent  to  defraud  his  or  its  creditors,  or  has 
assigned,  disposed  of,  or  secreted,  or  is  about  to  assign,  dis- 
pose of,  or  secrete,  any  of  his  or  its  property  with  the  like 
intent,  whether  such  defendant  be  a  resident  of  this  State 
or  not  It  shall  be  the  duty  of  the  plaintiff  procuring  such 
warrant,  within  ten  days  from  the  issuing  thereof,  to  file  the 
affidavits  on  which  the  same  was  granted  in  the  office  of  the 
Clerk  of  the  Superior  Court  to  which,  or  with  the  Justice  of 
-.the  Peace,  before  whom,  the  process  is  made  returnable. 


72  THE  CODE  OF 

§202. — Security  on  obtaining  warrant. 

Before  issuing  the  warrant,  the  officer  issuing  the  same 
shall  require  a  written  undertaking  on  the  part  of  the  plain- 
tiff, with  sufficient  surety,  to  the  effect,  that  if  the  defendant 
recover  judgment,  or  the  attachment  be  set  aside  by  the 
order  of  the  court,  the  plaintiff  will  pay  all  costs  that  may 
be  awarded  to  the  defendant,  and  all  damages  which  he 
may  sustain  by  reason  of  the  attachment,  not  exceeding  the 
sum  specified  in  the  undertaking,  which  shall  be  at  least 
two  hundred  and  fifty  dollars. 

§203. — Warrant,  to  whom  directed,  and  what  to  require. 

The  warrant  shall  be  directed  to  the  sheriff  of  any  county 
in  which  the  property  of  such  defendant  may  be,  or  in  case 
it  be  issued  by  a  Justice  of  the  Peace  to  such  sheriff,  or  to 
any  constable  of  such  county,  provided,  such  county  be  that 
of  the  Justice  issuing  the  warrant,  and  shall  require  such 
sheriff  or  constable  to  attach  and  safely  keep,  all  the  property 
ol  such  defendant  within  his  county,  or  so  much  thereof  as 
may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount 
of  which  must  be  stated  in  conformity  with  the  complaint, 
together  with  costs  and  expenses;  it  must  also  state  when 
and  where  it  shall  be  returned.  Several  warrants  may  be 
issued  at  the  same  time  to  the  sheriffs  of  different  counties. 

§204. — Mode  of  proceeding  in  executing  warrant. 

The  officer  to  whom  such  warrant  of  attachment  is  directed 
and  delivered,  shall  seize  and  take  into  his  possession  the 
tangible  personal  property  of  the  defendant,  or  so  much 
thereof,  as  may  be  necessary,  and  he  shall  be  liable  for  the 
care  and  custody  of  such  property,  as  if  the  same  had  been 
seized  under  execution :  he  shall  levy  on  the  real  estate  of 
the  defendant  as  prescribed  for  executions,  he  shall .  make 
and  return  with  the  warrant,  an  inventory  of  the  property 
seized  or  levied  on :  subject  to  the  direction  of  the  court,  he 
shall  collect  and  receive  into  his  possession  all  debts  owing 
to  the  defendant,  and  take  such  legal  proceedings,  either  in 
his  own  name,  or  in  that  of  the  defendant  as  may  be  neces 
sary  for  that  purpose. 


CIVIL  PROCEDURE.  73 

(yi05» — Proceedings  in  ease  of  porishable  property  or  vessel. 

If  any  property,  so  seized,  shall  be  perishable,  or  of  such 
character  that  the  expense  of  keeping  it  until  the  determi- 
nation of  the  suit,  would  be  likely  to  exceed  one  fifth  of  its 
value,  or  if  any  part  of  it  consists  of  a  vessel,  or  of  any  share 
or  interest  therein,  the  sheriff  or  other  officer  having  posses- 
sion thereof,  shall  immediately  apply  to  the  court  for  author- 
ity to  sell  the  same,  stating  the  circumstances,  and  the  same 
shall  be  sold,  under  the  order  and  direction  of  the  court. 

§206. — Interest  in  corporations  or  associatioas  liable  to  attachment. 

The  rights  or  shares  which  such  defendant  may  have,  in 
the  stock  of  any  association  or  corporation,  together  with 
the  interests  and  profits  thereon,  and  all  other  property  in 
this  State  of  such  defendant,  shall  be  liable  to  be  attached 
and  levied  on,  and  sold  to  satisfy  the  judgment  and  execu- 
tion, 

<yZ07. — Attachment,  how  executed  on  property  incapable  of  manual  delivery. 

The  execution  of  the  attachment  upon  any  such  rights, 
shares,  or  any  debts  or  other  property  incapable  of  manual 
delivery  to  the  sheriff,  shall  be  made,  by  leaving  a  certified 
copy  of  the  warrant  of  the  attachment,  with  the  President 
or  other  head  of  the  association  or  corporation,  or  the  secre- 
tary, cashier  or  managing  agent  thereof,  or  with  the  debtor 
or  individual  holding  such  property,  with  a  notice  showing 
the  property  levied  on. 

vj208. — Certificate  of  defendant's  interest  to  be  furnished. 

Whenever  the  sheriff  or  other  lawful  officer  with  a  war- 
rant of  attachment  or  execution,  shall  apply  to  any  officer 
mentioned  in  the  next  preceeding  section,  or  to  any  debtor 
or  individual,  for  the  purpose  of  attaching  or  levying  on  the 
property  of  the  defendant  in  such  warrant,  such  officer, 
debtor  or  individual  shall  furnish  him  with  a  certificate 
under  his  hand,  designating  the  number  of  rights  or  shares 
of  the  defendant  in  such  association  or  corporation,  with  any 


74  THE  CODE  OF 

dividend  or  any  incumbrance  thereon,  or  the  amount  and 
description  of  the  property  held  by  such  association,  corpo- 
ration, or  individual,  for  the  benefit  of,  or  debt  owing  to  the 
defendant.  If  such  officer,  debtor  or  individual  refuse  to  do 
so,  he  may  be  required  by  the  Court  or  Judge  to  attend 
before  him,  and  be  examined  on  oath  concerning  the  same, 
and  obedience  to  such  order  may  be  enforced  by  attachment. 

<j209« — Judgment,  how  satisfied. 

In  case  judgment  be  entered  for  the  plaintiff  in  such 
action,  the  sheriff  shall  satisfy  the  same  out  of  the  property 
attached  by  him,  if  it  shall  be  sufficient  for  that  purpose. 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all 
property  sold  by  him,  and  of  all  debts  or  credits  collected 
by  him,  or  so  much  as  shall  be  necessary  to  satisfy  such 
judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall 
have  been  issued  on  such  judgment,  he  shall  proceed  to  sell 
under  such  execution,  so  much  of  the  attached  property, 
real  or  personal,  except  as  provided  in  subdivision  four  of 
this  section,  as  may  be  necessary  to  satisfy  the  balance,  if 
enough  for  that  purpose  shall  remain  in  his  hands;  and  in 
case  of  the  sale  of  any  rights  or  shares  in  the  stock  of  a 
corporation  or  association,  the  sheriff  shall  execute  to  the 
purchaser  a  certificate  of  sale  thereof,  and  the  purchaser 
shall  thereupon  have  all  the  rights  and  privileges  in  respect 
thereto  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the 
defendant,  shall  have  passed  out  of  the  hands  of  the  sheriff 
without  having  been  sold  or  converted  into  money,  such 
sheriff  shall  repossess  himself  of  the  same,  and  for  that 
purpose,  shall  have  all  the  authority  which  he  had  to  seize 
the  same  under  the  attachment:  and  any  person  who  shall 
wilfully  conceal  or  withhold  such  property  from  the  sheriff, 
shall  be  liable  to  double  damages  at  the  suit  of  the  party 
injured. 

4.  Until  the  judgment  against  the  defendant  shall  be 
paid,  the  sheriff  may  proceed  to  collect  the  notes  and  other 


CIVIL  PROCEDURE.  75 

evidences  of  debt,  and  the  debts  that  may  have  been  seized 
■or  attached,  under  the  warrant  of  attachment,  and  to  prose- 
cute any  bond  he  may  have  taken  in  the  course  of  such 
proceedings,  and  apply  the  proceeds  thereof  to  the  payment 
of  the  judgment. 

At  the  expiration  of  six  months,  from  the  docketing  of 
the  judgment,  the  court  shall  have  power  upon  the  petition 
•of  the  plaintiff,  accompanied  by  an  affidavit  setting  forth 
fully  all  the  proceedings  which  have  been  had  by  the  sheriff, 
since  the  service  of  the  attachment,  the  property  attached, 
and  the  disposition  thereof,  and  also  the  affidavit  of  the  sheriff 
that  he  has  used  due  diligence,  and  endeavored  to  collect 
the  evidences  of  debt  in  his  hands  so  attached,  and  that 
there  remains  uncollected  of  the  same,  any  part  or  portion 
thereof,  to  order  the  sheriff  to  sell  the  same,  upon  such 
terms  and  in  such  manner  as  shall  be  deemed  proper.*  Notice 
of  such  application  shall  be  given  to  the  defendant  or  his 
attorney,  if  the  defendant  shall  have  appeared  in  the  action. 
In  case  the  summons  has  not  been  personally  served  on  the 
defendant,  the  court  shall  make  such  rule  or  order,  as  to  the 
service  of  notice  and  the  time  of  service,  as  shall  be  deemed 
just. 

When  the  judgment  and  all  costs  of  the  proceedings  shall 
have  been  paid,  the  sheriff,  upon  reasonable  demand  shall 
•deliver  over  to  the  defendant,  the  residue  of  the  attached 
property,  or  the  proceeds  thereof. 

.$210.— When  action  to  moYer  notes,  &c,  of  defendant,  may  be  prosecuted  by 
plaintiff  in  the  action  in  which  the*  attachment  issued. 
The  actions  herein  authorized  to  be  brought  by  the  sheriff 
may  be  prosecuted  by  the  plaintiff,  or  under  his  direction, 
upon  the  delivery  by  him  to  the  sheriff  of  an  undertaking 
executed  by  two  sufficient  sureties,  to  the  effect,  that  the 
plaintiff  will  indemnify  the  sheriff,  from  all  damages,  costs 
and  expenses  on  account  thereof,  not  exceeding  two  hun- 
dred and  fifty  dollars  in  any  one  action.  Such  sureties  shall 
in  all  cases  when  required  by  the  sheriff,  justify  by  making 
an  affidavit  that  each  is  a  householder,  or  free  holder  and 


76  THE   CODE  OF 

worth  double  the  amount  of  the  penalty  of  the  bond  over 
and  above  all  demands  and  liabilities,  and  exemptions. 

§211.— Bond  to  sheriff  oil  attachment,  how  disposed  of,  ou  judgment  for  defen- 
dant. 

If  the  foreign  corporation,  or  absent,  or  absconding,  or 
concealed  defendant,  recover  judgment  against  the  plaintiff 
in  such  action,  any  bond  taken  upon  the  issuing  of  the  war- 
rant of  attachment,  and  any  bond  taken  by  the  sheriff,  except 
such  as  are  mentioned  in  the  last  section,  all  the  proceeds  of 
sales  and  monies  collected  by  him,  and  all  the  property 
attached  remaining  in  his  hands,  shall  be  delivered  by  him 
to  the  defendant  or  his  agent  on  request,  and  the  warrant 
shall  be  discharged  and  the  property  released. 

<j212.— Discharge  of  attachment,  and  return  of  property  or  its  proceeds,  to  the 
defendant,  on  "lis  appearance  in  action. 

Whenever  the  defendant  shall  have  appeared  in  such 
action,  he  may  apply  to  the  Court  in  which  the  action  is 
pending,  or  to  the  Judge  thereof,  for  an  order  to  discharge 
the  same ;  and  if  the  same  be  granted,  all  the  proceeds  of 
sale,  and  moneys  collected  in  such  action,  and  all  the  pro- 
perty attached  remaining  in  the  hands  of  any  officer  of  the 
Court,  under  any  process  or  order  in  such  action,  shall  be 
delivered  or  paid  to  the  defendant  or  his  agent,  and  released 
from  the  attachment. 

And  where  there  is  more  than  one  defendant,  and  several 
property  of  either  of  the  defendants  has  been  seized  by  vir- 
tue of  the  order  of  attachment,  the  defendant  whose  several 
property  has  been  seized,  may  apply  in  like  manner  for 
relief. 

§213.— FAMer taking  o:i  part  of  the  defendant.    Discharge  of  att.»chn»sati 

Upon  such  application  the  defendant  shall  deliver  to  the 
Court  an  undertaking,  executed  by  at  least  two  sureties,  who 
are  resident  and  free-holders  or  house-holders  in  this  State. 
approved  by  such  Court,  to  the  effect  that  such  sureties,  ' 
will  on  demand,  pay  to  the  plaintiff  the  amount  of  judgment 


CIVIL  PROCEDURE.  77 

that  may  be  recovered  against  the  defendant  in  the  action, 
not  exceeding  the  sum  specified  in  the  undertaking,  which 
shall  be  at  least  double  the  amount  claimed  by  the  plaintiff 
in  his  complaint,  If  it  shall  appear  by  affidavit,  that  the 
property  attached  be  less  than  the  amount  claimed  by  the 
plaintiff,  the  Court  or  Judge  may  order  the  same  to  be 
appraised  and  the  amount  of  the  undertaking  shall  then  be 
double  the  amount  so  appraieed.  And  in  all  cases,  the 
defendant  may  move  to  discharge  the  attachment,  as  in  the 
ease  of  other  provisional  remedies. 

And  where  there  is  more  than  one  defendant,  and  several 
property  of  either  of  the  defendants,  has  been  seized  by  vir- 
tue of  the  order  of  attachment,  the  defendant  whose  several 
property  has  been  seized,  may  deliver  to  the  Court  an  under- 
taking, in  accordance  with  the  provision  of  this  section,  to 
the  effect  that  he  will  on  demand,  pay  to  the  plaintiff  the 
amount  of  judgment  that  may  be  recovered  against  such 
defendant.  And  all  the  provisions  of  this  section  applicable 
to  such  an  undertaking  shall  be  applied  thereto. 

)211.—  When  the  sheriff  to  return  warrant,  with  his  proceedings  thereon. 

The  sheriff  shall  return  the  warrant  of  attachment  with  a 
statement  of  his  proceedings  thereon,  at  the  time  and  place 
at  which  it  is  on  its  face  returnable,  and  upon,  or  at  any 
time  after  such  return,  he  may  obtain  from  the  Court  to 
which  the  same  was  returnable,  a  certified  copy  thereof, 
which  shall  be  held  and  deemed  for  the  purpose  of  giving 
him  authority,  the  same  as  the  original,  and  when  the  war- 
rant shall  have  been  fully  executed  or  discharged,  the 
sheriff  shall  return  the  same,  with  his  proceedings,  to  the 
-aid  Court. 


78  THE  CODE  OF 

CHAPTER  V. 

PROVISIONAL   REMEDIES. 

§215. — Powers  of  Conrt  as  to  receivers,  deposit  of  money,  &e.,  in  Court,  and 
other  provisional  remedies.    Judgment  for  sum  admitted  dne. 

A  receiver  may  be  appointed, — 

1.  Before  judgment,  on  the  application  of  either  party, 
when  he  establishes  an  apparent  right  to  property  which 
is  the  subject  of  the  action,  and  which  is  in  the  possession 
of  an  adverse  party,  and  the  property,  or  its  rents  and  pro- 
fits, are  in  danger  of  being  lost,  or  materially  injured  or 
impaired;  exoept  in  cases  where  judgment  upon  failure  to* 
answer  may  be  had  on  application  to  the  Court; 

2.  After  judgment,  to  carry  the  judgment  into  effect; 

8.  After  judgment,  to  dispose  of  the  property  according; 
to  the  judgment,  or  to  preserve  it  during  the  pendency  of 
an  appeal,  or  when  an  execution  has  been  returned  unsatis- 
fied, and  the  judgment-debtor  refuses  to  apply  his  property 
in  satisfaction  of  the  judgment; 

4.  In  the  cases  provided  in  this  Code  and  by  special 
statutes,  when  a  corporation  has  been  dissolved,  or  is  insol- 
vent or  in  imminent  danger  of  insolvency,  or  has  forfeited 
its  corporate  rights;  and  in  like  cases,  of  the  property 
within  this  State  of  foreign  corporations.  Receivers  of  the 
property  within  this  State- of  foreign  or  other  corporations 
shall  be  allowed  such  commissions  as  may  be  fixed  by  the 
Judge  appointing  them,  not  exceeding  five  per  cent,  on  the 
amount  received  and  disbursed  by  them. 

5.  In  such  other  cases  as  are  now  provided  by  law,  or  may 
be  in  accordance  with  the  existing  practice,  except  as  other- 
wise provided  in  this  act. 

When  it  is  admitted,  by  the  pleading  or  examination  of  a 
party  that  he  has  in  his  possession,  or  under  his  control,  any 
money  or  other  thing  capable  of  delivery,  which,  being  the 
subject  of  the  litigation,  is  held  by  him  as  trustee  for  another 
party,    or   which  belongs  or  is  due  to  another  party,  the 


CIVIL  PROCEDURE.  79 

Judge  may  order  the  same  to  be  deposited  in  court,  or 
delivered  to  such  party,  with  or  without  security,  subject  to 
the  further  direction  of  the  Judge. 

Whenever,  in  the  exercise  of  his  authority  a  Judge  shall 
have  ordered  the  deposit,  delivery  or  conveyance  of  money 
or  other  property,  and  the  order  is  disobeyed,  the  Judge, 
besides  punishing  the  disobedience  as  for  contempt,  may 
make  an  order  requiring  the  sheriff  to  take  the  money  or 
property,  and  deposit,  deliver,  or  convey  it,  in  conformity 
with  the  direction  oi  the  Judge. 

"When  the  answer  of  the  defendant  expressly,  or  by  not 
denying,  admits  part  of  the  plaintiff's  claim  to  be  just,  the 
Judge,  on  motion,  may  order  such  defendant  to  satisfy  that 
part  of  the  claim,  and  may  enforce  the  order  as  it  enforces  a 
judgment  or  provisional  remedy. 


TITLE    X. 

OF    THE    TRIAL    AND    JUDGMENT    IX    CIVIL    ACTIONS. 

Chapter  I.      Jndgmeut  upon  failure  to  answer,  &.<•. 
• "      II.     Issues  and  the  mode  of  trial. 
"      III.  Trial  by  jnry. 
"      IV.   Trial  by  the  court. 
"      V.     Trial  by  referees. 
(1      VI.   The  maimer  ef  entering  judgment. 

CHAPTER  1. 

JUDGMENT    UPON    FAILURE    TO    ANSWER,    AC 

<yll6.— .Ind^oieut  detiued.j 

A  judgment  is  the  final   determination  of  the  rights  of 
the  parties  in  the  action. 


80  THE  CODE  OF 

§217.— Judgment  on  failure  of  defendant  to  answer,  or  for  excess  over  counter- 
claim. 

Judgment  may  be  had,  if  the  defendant  fail  to  answer  the 
complaint,  as  follows : 

1.  In  any  action  arising  on  contract  for  the  recovery  of 
money  only,  the  plaintiff  may  file  with  the  clerk  proof  of 
personal  service  of  tile  summons  and  complaint  on  one  or 
more  of  the  defendants,  or  of  the  summons  according  to  the 
provisions  of  section  seventy-six,  and  that  no  answer  has 
been  filed.  The  clerk  shall  thereupon  enter  judgment  for 
the  amount  mentioned  in  the  summons,  against  the  defen- 
dant or  defendants,  or  against  one  or  more  of  several  defen- 
dants, in  the  cases  provided  for  in  section  eighty-seven.  But 
if  the  complaint  be  not  sworn  to,  and  such  action  is  on  an 
instrument  for  the  payment  of  money  only,  the  clerk,  on  its 
production  to  him,  shall  assess  the  amount  due  to  the  plaintiff 
thereon ;  and  in  other  cases  shall  ascertain  the  amount  which 
the  plaintiff  is  entitled  to  recover  in  such  action,  from  his 
examination,  under  oath,  or  other  proof,  and  enter  the  judg- 
ment for  the  amount  so  assessed  or  ascertained.  In  case  the 
defendant  give  notice  of  appearance  in  the  action,  he  shall 
be  entitled  to  five  days'  notice  of  the  time  and  place  of  such 
assessment. 

Where  the  defendant,  by  his  answer  in  such  action,  shall 
not  deny  the  plaintiffs  claim,  but  shall  set  up  a  counter- 
claim, amounting  to  less  than  the  plaintiff's  claim,  judgment 
may  be  had  by  the  plaintiff  for  the  excess  of  said  claim  over 
the  said  counter-claim,  in  like  manner  in  any  such  action, 
upon  the  plaintiff's  filing  with  the  clerk  of  the  Court  a  state- 
ment admitting  such  counter  claim,  which  statement  shall 
be  annexed  to  and  be  a  part  of  the  judgment-roll. 

2.  In  other  actions  the  plaintiff  may,  upon  the  like  proof, 
apply  to  the  Court,  after  the  expiration  of  the  time  for 
answering,  for  the  relief  demanded  in  the  complaint.  If  the 
taking  of  an  account  or  the  proof  of  any  fact  be  necessary 
to  enable  the  Court  to  give  judgment,  or  to  carry  the  judg- 
ment into  effect,  the  Court  may  take  the  account  or  hear  the 
proof,  or  may,  in  its  discretion,  order  a  reference  for  that 


CIVIL  PROCEDURE.  81 

purpose.  And  where  the  action  is  for  the  recovery  of  rrfoney 
only,  or  of  specific  real  or  personal  property,  with  damages 
for  the  withholding  thereof,  the  court  may  order  the  damages 
to  be  assessed  by  a  jury,  or,  if  the  examination  of  a  long 
account  be  involved,  by  a  reference  as  above  provided.  If 
the  defendant  give  notice  of  appearance  in  the  action  before 
the  expiration  of  the  time  for  answering,  he  shall  be  entitled 
to  eight  days'  notice  of  the  time  and  place  of  application  to 
the  Court  for  the  relief  demanded  by  the  complaint. 

3.  In  actions  where  the  service  of  the  summons  was  by 
publication,  the  plaintiff  may,  in  like  manner,  apply  for 
judgment,  and  the  court  must  thereupon  require  proof  to  be 
made  of  the  demand  mentioned  in  the  complaint;  and  if  the 
defendant  be  not  a  resident  of  the  State  must  require  the 
plaintiff  or  his  agent  to  be  examined  on  oath  respecting  any 
payments  that  have.been  made  to  the  plaintiff,  or  to  any  one 
for  his  use,  on  account  of  such  demand,  and  may  render 
judgment  for  the  amount  which  he  is  entitled  to  recover. 
Before  rendering  judgment  the'  court  may,  in  its  discretion, 
require  the  plaintiff  to  oause  to  be  filed  satisfactory  security, 
to  abide  the  order  of  the  court,  touching  the  restitution  of 
any  estate  or  effects  which  may  be  directed  by  such  judgment  * 
to  be  transferred  or  delivered,  or  the  restitution  of  any  money 
that  may  be  collected  under  or  by  virtue  of  such  judgment, 
in  case  the  defendant  or  his  representatives  shall  apply  and 
be  admitted  to  defend  the  action,  and  shall  succeed  in  such 
defence. 

£218.— Judgment  on  frivolous  demurrer,  answer  or  reply. 

If  a  demurrer,  answer  or  reply  be  frivolous,  the  party  pre- 
judiced thereby,  upon  a  previous  notice  of  five  days  may 
apply  to  the  court  or  to  the  Judge  thereof,  either  in  or  out  of 
the  court,  for  judgment  thereon,  and  judgment  may  be  given 
accordingly. 


82  THE  CODE  OF 

CHAPTER  II. 

ISSUES,  AND  THE  MODE  OF  TRIAL. 

§219.— The  different  kinds  of  issues. 

Issues  arise  upon  the  pleadings  when  a  fact  or  conclusions 
of  law  is  maintained  by  the  one  party  and  controverted  by 
the  other.     They  are  of  two  kinds; 

1.  Of  law;  and 

2.  Of  fact. 

§220.— Issue  of  law. 

An  issue  of  law  arises, 

1.  Upon  a  demurrer  to  the  complaint,  answer  or  reply,  or 
to  some  part  thereof. 

§221. — Issue  of  fact. 

An  issue  of  fact  arises, 

1.  Upon  a  material  allegation  in  the  complaint  contro- 
verted by  the  answer;  or, 

2.  Upon  new  matter  in  the  answer  controverted  by  the 
reply;  or, 

3.  Upon  new  matter  in  the  reply,  except  an  issue  of  law 
is  joined  thereon. 

(yiii. — On  issues  of  both  law  and  fact,  the  issue  of  law  to  be  tried  first. 

Issues  both  of  law  and  of  fact  may  arise  upon  different 
parts  of  the  pleadings  in  the  same  action.  In  such  cases 
the  issues  of  law  must  be  first  tried,  unless  the  court  other- 
wise direct. 

§223.— Trial  defined. 

A  trial  is  the  judicial  examination  of  the  issues  between 
the  parties,  whether  they  be  issues  of  law  or  of  fact. 

<>224. — Issnes,  how  tried. 

An  issue  of  law  must  be  tried  by  the  Judge  of  the  court, 
"unless  it  be  referred,  as  provided  in  sections  two  hundred  and 
forty-four  and  two    hundred  and  lorty-five.      An  issue  of 


CIVIL  PROCEDURE.  83 

feet,  in  an  action  for  the  recovery  of  money  only,  or  of 
specific  real  or  personal  property,  or  for  a  divorce  from  the 
marriage  contract  on  the  ground  of  adultery,  must  be  tried 
by  a  jury,  unless  a  jury  trial  be  waived,  as  provided  in  sec- 
tion two  hundred  and  forty,  or  a  reference  be  ordered,  as 
provided  in  sections  two  hundred  and  forty-four  and  two 
hundred  and  forty-five. 

§225. — Oilier  issnes  to  be  tried  by  the  conrt  or  Judge. 

Every  other  issue  is  triable  by  the  court,  or  the  Judge 
thereof,  who,  however,  may  order  the  whole  issue,  or  any 
specific  question  of  fact  involved  therein,  to  be  tried  by  a 
jury,  or  may  refer  it,  as  provided  in  sections  two  hundred 
and  forty-four  and  two  hundred  and  fortyfive.  . 

§228.— Issnes  of  fact,  when  to  be  tried. 

Every  issue  of  fact  joined  on  the  pleadings,  and  inquiry 
of  damages  required  to  be  tried  by  a  jury,  shall  be  tried  at 
the  term  of  the  court  next  ensuing  such  joinder  of  issue  or 
order  for  inquiry;  provided  such  issue  shall  have  been 
joined  or  order  for  inquiry  made,  more  than  thirty  days 
before  such  term,  but  if  not,  they  shall  be  tried  at  the  second 
term  after  such  joinder  or  order. 

§22*. — Trial  may  be  i><>stj>ofled  by  elerk,  when. 

Any  party  to  any  action  may  apply  to  the  court  in  which 
it  is  pending,  or  to  the  Judge  thereof,  after  three  days 
notice  in  writing  to  the  adverse  party,  to  have  the  trial 
deferred  to  a  term  subsequent  to  that  in  which  it  is  regularly 
triable;  such  application  must  be  made  thirty  days  before 
the  trial  term,  and  must  be  on  affidavit.  The  court  or 
Judge  may  defer  the  trial  as  asked  for,  on  such  terms  as 
shall  be  just,  if  satisfied: 

1.  That  the  applicant  has  used  due  diligence  to  have  his 
case  ready  for  trial ;  and, 

2.  That  by  reason  of  circumstances  beyond  his  control, 
which  he  shall  set  forth,  he  cannot  have  a  fair  trial  at  the 
regular  trial  term;. if  the  application  is  made  by  reason'-  of 


84  THE  CODE  OF 

the  expected  absence  of  a  witness,  it  shall  state  the  name 
and  residence  of  the  witness,  the  facts  expected  to  be  proved 
by  him,  and  the  grounds  for  the  expectation  of  his  non- 
attendance,  and  that  the  applicant  expects  to  procure  his 
evidence  at  or  before  some  named  subsequent  term. 

The  applicant  shall  in  all  cases  pay  the  costs  of  the  appli- 
cation. 

v>228t — Trial  postponed  by  Judge  in  term,  when. 

The  Judge  at  any  time  during  the  term  at  which  an 
action  is  triable,  may  postpone  the  trial  on  the  application 
of  either  party  and  on  such  terms  as  shall  be  just,  if  sat- 
isfied: 

1.  That  the  applicant  has  used  due  diligence  to  be  ready 
for  trial. 

2.  That  he  cannot  have  a  fair  trial  at  that  term,  by  reason 
of  circumstances  stated,  and  if  the  ground  of  application 
be,  the  non-attendance  of  a  witness,  the  affidavit  shall 
contain  the  particulars  required  by  subdivision  two  of 
section  two  hundred  and  twenty-seven.  Unless  the  applicant 
shall  also  set  forth  in  his  affidavit,  that  the  facts  upon  which 
hisapplication  is  grounded  occurred,  or  came  tohisknowledge 
too  late  to  allow  him  to  apply  as  prescribed  in  the  last 
section,  and  that  his  application  is  made  as  soon  as  it 
reasonably  could  be  after  the  knowledge  of  such  facts,  the 
postponement  shall  not  be  granted,  except  on  the  terms  of 
the  payment  of  the  costs  in  the  action  for  the  term. 

£229. — Criminai  calendar  first  disposed  of.    Order  of  disposing  of  issues  in 
civil  actions* 

The  criminal  calender  shall  be  first  disposed  of,  unless  by 
consent  of  counsel,  or  for  reasons  satisfactory  to  the  Judge, 
particular  criminal  actions  may  be  deferred.  The  issues 
on  the  civil  calendar  shall  be  disposed  of  in  the  following 
order,  unless,  for  the  convenience  of  parties  or  the  dispatch 
of  business,  the  court  shall  otherwise  direct: 


CIVIL  PROCEDURE.  85 


1.  Issues  of  fact  to  be  tried  by  a  jury ; 

2.  Issues  of  fact  to  be  tried  by  the  court ; 

3.  Issues  of  law. 


CHAPTER  III. 


TRIAL    BY    JURY. 


§230.— Separate  trials. 

A  separate  trial  between  a  plaintiff  and  any  of  the  several 
defendants  may  be  allowed  by  the  court,  whenever,  in  its 
opinion,  justice  will  thereby  be  promoted. 

§231.— Judge  to  be  furnished  with  copy  pleadings,  &c. 

The  clerk  shall  furnish  the  Judge  with  a  copy  of  the 
summons  and  pleadings,  and  with  the  offer  of  the  defendant 
if  any  shall  have  been  made. 

§232.— General  and  special  verdicts  defined. 

A  general  verdict  is  that  by  which  the  jury  pronounce 
generally  upon  all  or  any  of  the  issues,  either  in  favor  of 
the  plaintiff  or  defendant.  A  special  verdict  is  that  by 
which  the  jury  find  the  facts  only,  leaving  the  judgment  to 
the  court. 

§233.— When  jury  may  render  either  general  or  special  verdict,  and  when 
Judge  may  direct  special  finding. 

In  an  action  for  the  recovery  of  specific  personal  property, 
if  the  property  have  not  been  delivered  to  the  plaintiff,  or 
the  defendant  by  his  answer  claim  a  return  thereof,  the  jury 
shall  assess  the  value  of  the  property,  if  their  verdict  be  in 
favor  of  the  plaintiff;  or  if  they  find  in  favor  of  the  defen- 
dant, and  that  he  is  entitled  to  a  return  thereof;  and  may 
at  the  same  time  assess  the  damages,  if  any  are  claimed  in  the 
complaint  or  answer,  which  the  prevailing  party  has  sus- 
tained by  reason  of  the  detention  or  taking  and  withhold- 
ing such  property. 


SG  THE  CODE  OF 

In  every  action  for  the  recovery  of  money  only,  or  specific 
real  property,  the  jury,  in  their  discretion,  may  render  a 
general  or  special  verdict.  In  all  other  cases,  the  court  may 
direct  the  jury  to  find  a  special  verdict  in  writing,  upon  all 
or  any  of  the  issues;  and  in  all  cases  may  instruct  them  if 
they  render  a  general  verdict,  to  find  upon  particular  cmes- 
tions  of  facts,  to  be  stated  in  writing,  and  may  direct  a 
written  finding  thereon.  The  special  verdict  or  finding 
shall  be  filed  with  the  clerk,  and  entered  upon  the  minutes. 

§231. — On  special  finding  with  general  verdict,  former  to  control. 

Where  a  special  finding  of  facts  shall  be  inconsistent  with 
the  general  verdict,  the  former  shall  control  the  latter,  and 
the  court  shall  give  judgment  accordingly. 

,^235. — Jnrj  to  assess  defendant's  damages  in  certain  cases. 

When  a  verdict  is  found  for  the  plaintiff  in  an  action  for 
the  recovery  of  money,  or  for  the  defendant  when  a  set-off 
for  the  recovery  of  money  is  established  beyond  the  amount 
of  the  plaintiff's  claim  as  established,  the  jury  must  also 
assess  the  amount  of  the  recovery;  they  may  also,  under 
the  direction  of  the  court,  assess  the  amount  of  the  recovery 
when  the  court  give  judgment  for  the  plaintiff  on  the 
answer.  If  a  set-off,  established  at  the  trial,  exceed  the 
plaintiff's  demand  so  established,  judgment  for  the  defen- 
dant must  be  given  for  the  excess;  or  if  it  appear  that  the 
defendant  is  entitled  to  any  other  affirmative  relief,  judg- 
ment must  be  given  accordingly. 

£236. — Eutry  of  the  verdict.    Motion  for  new  trial  on  Judge's  minutes. 

(1.)  Upon  receiving  a  verdict,  the  clerk  shall  make  an 
entry  in  his  minutes,  specifying  the  time  and  place  of  the 
trial,  the  names  of  the  jurors  and  witnesses,  the  verdict,  and 
either  the  judgment  rendered  thereon,  or  an  order  that  the 
cause  be  reserved  for  argument  or  further  consideration.  If 
a  different  direction  be  not  given  by  the  court,  the  clerk 
must  enter  judgment  in  conformity  with  the  verdict.     (2.) 


CIVIL  PROCEDURE.  87 

If  an  exception  be  taken,  it  may  be  reduced  to  writing  at 
the  time,  or  entered  in  the  Judge's  minutes,  and  afterwards 
.settled  as  provided  by  the  rules  of  the  court,  and  then  stated 
in  writing  in  a  case,  or  separately,  with  so  much  of  the  evi- 
dence as  may  be  material  to  the  questions  to  be  raised,  but 
a  bill  of  exceptions  need  not  be  made.  (3.)  If  the  excep- 
tions be  in  the  first  instance  stated  in  a  .case,  and  it  be 
necessary  to  separate  them,  the  separation  may  be  made 
under  the  direction  of  the  Judge.  (4.)  The  Judge  who 
tries  the  cause  may,  in  his  discretion,  entertain  a  motion,  to 
be  made  on  his  minutes,  to  set  aside  a  verdict  and  grant  a 
new  trial  upon  exceptions,  or  for  insufficient  evidence,  or  for 
excessive  damages;  but  such  motion  can  only  be  heard  at 
the  same  term  at  which  the  trial  is  had.  When  such  motion 
is  heard  and  decided  upon  the  minutes  of  the  Judge,  and  an 
appeal  is  taken  from  the  decision,  a  case  or  exceptions  must 
be  settled  in  the  usual  form,  upon  which  the  argument  of 
the  appeal  must  be  had. 

^23T Judge  to  explain  law,  but  to  express  no  opinions  on  facts. 

No  Judge,  in  giving  a  charge  to  the  petty  jury,  shall  give 
an  opinion  whether  a  fact  is  fully  or  sufficiently  proven, 
such  matter  being  the  true  office  and  province  of  the  jury; 
but  he  shall  state  in  a  plain  and  correct  manner,  the  evi- 
dence given  'in  the  case,  and  declare  and  explain  the  law 
arising  thereon. 

§238.— Judge  to  put  his  instructions  in  writing. 

Every  Judge,  at  the  request  of  any  party  to  an  action  on 
trial,  made  at  or  before  the  close  of  the  evidence,  before 
instructing  the  jury  on  the  law,  shall  put  his  instructions  in 
writing,  and  read  them  to  the  jury ;  he  shall  then  sign  and 
file  them  with  the  Clerk  as  a  part  of  the  record  of  the  action. 

§239 — Counsel  to  put  their  prayers  for  instruction  in  writing. 

Counsel  praying  of  the  Judge  instructions  to  the  jury, 
shall  put  their  request  in  writing  entitled  of  the  cause,  and 
sign  them;  otherwise  the  Judge  may  disregard  them;  they 
shall  be  filed  with  the  clerk  as  a  part  of  the  record. 


88  THE  CODE  OF 

CHAPTER  IV. 

TRIAL  BY  THE  COURT. 

§240.— Trial  by  jury,  how  waived. 

Trial  by  jury  may  be  waived  by  the  several  parties  to  an 
issue  of  fact,  in  actions  on  contract,  and  with  the  assent  of 
the  court,  in  other  actions,  in  the  manner  following : 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent,  in  person  or  by  attorney,  filed  with 
the  clerk. 

3.  By  oral  consent,  entered  in  the  minutes. 

$241— Oa  trial  by  the  court,  judgment,  how  to  be  given. 

Upon  the  trial  of  a  question  of  fact  by  the  court,  its  decis- 
ion shall  be  given  in  writing,  and  shall  contain  a  statement 
of  the  facts  found,  and  the  conclusions  of  law,  separately ;. 
and  upon  a  trial  of  an  issue  at  law,  the  decision  shall  be 
made  in  the  same  manner,  stating  the  conclusions  of  law. 
Such  decision  shall  be  filed  with  the  clerk  during  the  court 
at  which  the  trial  takes  place.  Judgment  upon  the  decision 
shall  be  entered  accordingly. 

§242. — Exceptions,  how  and  when  taken. 

[1.]  For  the  purposes  of  an  appeal,  either  party  may 
except  to  a  decision  on  a  matter  of  law  arising  upon  such 
trial  within  ten  days  after  the  judgment,  in  the  same  manner 
and  with  the  same  effect  as  upon  a  trial  by  jury.  Provided, 
however,  that  where  the  decision  does  not  authorize  a  final 
judgment,  but  directs  further  proceedings  before  a  referee 
or  otherwise,  either  party  may  except  thereto,  and  make  a 
case  or  exception  as  above  provided  in  case  of  an  appeal. 

[2.]  And  either  party  desiring  a  review,  upon  the  evi- 
dence appearing  on  the  trial,  of  the  questions  of  law  mayr 
at  any  time  within  ten  days  after  the  judgment,  or  within 
such  time  as  may  be  prescribed  by  the  rules  of  the  court,. 


CIVIL  PROCEDURE.  89 

make  a  case  or  exceptions  in  like  manner  as  upon  a  trial  by 
jury,  except  that  the  Judge,  in  settling  the  case,  must  briefly 
specify  the  facts  found  by  him,  and  his  conclusions  of  law. 

</2l$. — Proceedings  upon  judgment  on  issue  of  law. 

On  a  judgment  for  the  plaintiff  upon  an  issue  of  law,  the 
plaintiff  may  proceed  in  the  manner  prescribed  by  the  first 
two  subdivisions  of  section  two  hundred  and  seventeen,  upon 
the  failure  of  the  defendant  to  answer,  where  the  summons 
was  personally  served.  If  judgment  be  for  the  defendant,, 
upon  an  issue  of  law,  and  if  taking  of  an  account  or  the 
proof  of  any  fact  be  necessary  to  enable  the  court  to  com- 
plete the  judgment,  a  reference  or  assessment  by  jury  may 
be  ordered,  as  in  that  section  provided. 


CHAPTER  V 


TRIAL  BY  REFEREES. 


§244. — All  issues  referable  by  consent. 

All,  or  any,  of  the  issues  in  the  action,  whether  of  fact  or 
of  law,  or  both,  may  be  referred,  upon  the  written  consent 
of  the  parties: 

t>245. — When  reference  may  be  compulsorily  ordered. 

Where  the  parties  do  not  consent,  the  court  may,  upon 
the  application  of  either,  of  its  own  motion,  except  where 
the  investigation  will  require  the  decision  of  difficult  ques- 
tions of  law,  direct  a  reference  in  the  following  cases: 

1.  Where  the  trial  of  an  issue  of  fact  shall  require  the 
examination  of  a  long  account  on  either  side;  in  which 
case  the  referee  may  be  directed  to  hear  and  decide  the 
whole  issue,  or  to  report  upon  any  specific  question  of  fact 
involved  therein ;  or, 


DO  THF,  CODE  OF 

2.  Where  the  taking  of  an  account  shall  be  necessary  for 
the  information  of  the  court,  before  judgment,  or  for  carry- 
ing a  judgment  order  into  effect ;   or, 

3.  When  case  involves  a  complicated  question  of  boundary, 
or  one  which  requires  a  personal  view  of  the  premises. 

•  4.  Where  a  question  of  fact,  other  than  upon  the  pleadings, 
shall  arise,  upon  motion  or  otherwise,  in  any  stage  of  the 
action. 


§246.— Mode  of  trial— Effect  of  report— Review. 

The  trial  by  referees  shall  be  conducted  in  the  same 
manner,  as  a  trial  by  the  court.  They  shall  have  the  same 
power  to  grant  adjournments  and  to  allow  amendments  to 
any  pleadings  and  to  the  summons,  as  the  court  upon  such 
trial,  upon  the  same  terms  and  with  like  effect.  They  shall 
have  the  same  power  to  preserve  order  and  punish  all  viola- 
tions thereof  upon  such  trial,  and  to  compel  the  attendance 
of  witnesses  before  them  by  attachment,  and  to  punish  them 
as  for  a  contempt  for  non-attendance  or  refusal  to  be  sworn 
or  testify,  as  is  possessed  by  the  court.  They  must  state  the 
facts  found  and  the  conclusions  of  law  separately;  and  their 
decision  must  be  given,  and  may  be  excepted  to  and 
reviewed  in  like  manner,  and  with  like  effect  in  all  respects 
a,s  in  cases  of  appeal  under  section  two  hundred  and  forty- 
two  ;  and  they  may  in  like  manner  settle  a  case  or  excep- 
tions. The  report  of  the  referees  upon  the  whole  issue 
shall  stand  as  the  decision  of  the  court,  and  judgment  may 
be  entered  thereon  upon  application  to  the  Jndge,  and  his 
-order.  When  the  reference  is  to  report  the  facts,  the  report 
-shall  have  the  effect  of  a  special  verdict. 

§24T« — Referees,  how  chosen — Who  may  be  referee— Report. 

In  all  cases  of  reference  the  parties  as  to  whom  issues  are 
formed  in  the  action  (except  when  the  defendant  is  an  infant 
or  an  absentee)  may  agree  in  writing  upon  a  person  or 
persons,  not  exceeding  three,  and  a  reference  shall  be  ordered 
to  him  or  them,  and  to  no  other  person,  or  persons.     And 


CIVIL  PROCEDURE.  91 

if  such  parties  do  not  agree,  the  court  shall  appoiut  one  or 
more  referees,  not  more  than  three,  who  shall  be  free  from 
exception.  And  no  person  shall  be  appointed  referee  to 
whom  all  parties  in  the  action  shall  object,  except  in  actions 
for  divorce.  And  no  Judge  or  Justice  of  any  court  shall  sit 
as  referee  in  any  action  pending  in  the  court  of  which  he  is 
Judge  or  Justice,  and  not  already  referred,  unless  the 
parties  otherwise  stipulate.  tThe  referee  or  referees  shall 
make  and  deliver  a  report  within  sixty  days  from  the  time 
the  action  shall  be  finally  submitted;  and  in  default  thereof, 
and  before  the  report  is  delivered,  either  party  may  serve 
notice  upon  the  opposite  party  that  he  elects  to  end  the 
reference;  and  thereupon  the  action  shall  proceed  as  though 
no  reference  had  been  ordered,  and  the  referees  shall  not  in 
such  case  be  entitled  to  any  fees. 

The  report  of  the  referee  shall  be  made  to  the  clerk  of  the 
court  in  which  the  action  is  pending:  either  party  after  ten 
clays  notice  to  the  adverse  party,  may  move  the  Judge  to 
review  such  report,  and  set  aside,  modify,  or  confirm  the 
same  in  whole  or  in  part,  and  no  judgment  shall  be  entered 
on  any  reference  except  by  order  of  the  Judge. 


CHAPTER   VI. 


MANNER  OF  ENTERING  JUDGMENT. 


£2-18.— Judgment  may  be  for  or  against  any  of  the  parties ;  may  grant  defen- 
dant affirmative  relief— Complaint  may  be  dismissed  for  neglect  to  prosecute 
action—  Jndginent  against  married  woman. 

(1.)  Judgment  may  be  given  for  or  against  one  or  more 
of  several  plaintiffs,  and  for  or  against  one  or  more  of  several 
defendants;  and  it  may  determine  the  ultimate  rights  of  the 
parties  on  each  side,  as  between  themselves. 

(2.)  And  it  may  grant  to  the  defendant  any  affirmative 
relief  to  which  he  may  be  entitled. 


92  THE  CODE  OF 

(3.)  In  an  action  against  several  defendants,  the  court 
may,  in  its  discretion,  render  judgment  against  one  or  m,ore- 
of  them,  leaving  the  action  to  proceed  against  the  others, 
whenever  a  several  judgment  may  be  proper. 

(4.)  The  court  may  also  dismiss  the  complaint,  with  costs 
in  favor  of  one  or  more  defendants,  in  case  of  unreasonable 
neglect  on  the  part  of  the  plaintiff  to  serve  the  summons  on 
other  defendants,  or  to  proceed  in  the  cause  against  the 
defendant  or  defendants  served. 

In  an  action  brought  by  or  against  a  married  woman, 
judgment  may  be  given  against  her  as  well  for  costs  as  for 
damages,  or  both  for  such  costs  and  for  such  damages,  in 
the  same  manner  as  against  other  persons,  to  be  levied  and 
collected  of  her  separate  estate  and  not  otherwise. 

§249.— The  relief  to  be  awarded  to  the  plaintiff. 

The  relief  granted  lo  the  plaintiff,  if  there  be  no  answer, 
cannot  exceed  that  which  he  shall  have  demanded  in  his 
complaint ;  but  in  any  other  case  the  court  may  grant  him 
any  relief  consistent  with  the  case  made  by  the  complaint 
and  embraced  within  the  issue. 

§250. — Rates  of  damages  where  damages  are  recoverable. 

Whenever  damages  are  recoverable,  the  plaintiff  may 
claim  and  recover,  if  he  show  himself  entitled  thereto,  any 
rate  of  damages  which  he  might  have  heretofore  recovered 
for  the  same  cause  of  action. 

§251. — Jadgment  in  action  for  recovery  of  personal  property. 

In  an  action  to  recover  the  possession  of  personal  property,, 
judgment  for  the  plaintiff  may  be  for  the  possession,  or  for 
the  recovery  of  possession,  or  for  the  value  thereof,  in  case  a 
delivery  cannot  be  had,  and  the  damages  for  the  detention. 
If  the  property  have  been  delivered  to  the  plaintiff,  and  the 
defendant  claim  a  return  thereof,  judgment  for  the  defen- 
dant may  be  for  a  return  of  the  property,  or  the  value  thereof 
in  case  a  return  cannot  be  had,  and  damages  for  taking  and 
withholding  the  same. 


CIVIL  PROCEDURE.  93 

425?, — Clerk  to  cuter  judgment*  on  judgment  book,  al*o  jndgmeuts  rendered 
in  other  courts,  and  index  them. 

The  Clerk  of  the  Superior  Court  shall  enter  every  judg- 
ment of  the  court,  on  his  judgment  book;  it  shall  specify 
clearly  the  relief  granted,  or  other  determination  of  the 
action ;  he  shall  also  enter  on  said  book  all  judgments  ren- 
dered, in  any  other  court,  and.  authorized,  by  law  to  be  so 
entered,  and  shall  keep  an  alphabetical  index  of  the  whole, 
with  the  dates  and  numbers  thereof. 

§255.— Judgment  roll. 

Unless  the  party  or  his  attorney  shall  furnish  a  judgment- 
roll,  the  clerk,  immediately  after  entering  the  judgment, 
shall  attach  together,  and.  file  the  following  papers,  which 
shall  constitute  the  judgment-roll: 

1.  In  case  the  complaint  be  not  answerecUby  any  defen- 
dant, the  summons  and  oomplaint,  or  copies  thereof,  proof 
of  service,  and  that  no  answer  has  been  received,  the  report 
if  any,  and  a  copy  of  the  judgment. 

2.  frrall  other  cases,  the  summons,  pleadings,  or  copies 
thereof,  and  a  copy  of  the  judgment,  with  any  verdict  or 
report,  the  offer  of  the  defendant,  exceptions,  case,  and  all 
orders  and  papers  in  any  way  involving  the  merits  and 
necessarily  affecting  the  judgment. 

5*54.— Existing  suits.    Judgments,  when  and  how  to  be  docketed.    Seemed  en 
appeal. 

Upon  filing  a  judgrnent-roTiupon  a  judgment  directing  in 
whole  or  in  part  the  payment  of  money,  it  may  be  docketed 
with  the  clerk  ol  the  county  where  the  judgment -roll  was 
iiled,  and  in  any  other  county  upon  the  filing  with  the  clerk 
thereof  a  transcript  of  the  original  "  docket,  "  and  shall  be 
a  lien  on  the  real  property  in  the  county,  where  the  same  is 
docketed,  of  every  person  against  whom  any  such  judgment 
shall  be  rendered,  and  which  he  may  have  at  the  time  of 
the  docketing  thereof  in  the  county  in  which  such  real  pro- 
perty is  situated,  or  which  he  shall  acquire  at  any  time  there- 
after, for  ten  years  from  the  time  of  docketing  the  same  in 


94    '  THE  CODE  OF 

the  county  where  the  judgment-roll  was  filed.  But  the 
time  during  which  the  party  recovering  or  owning  such 
judgment  shall  be,  or  shall  have  been,  restrained  from  pro- 
ceeding thereon  by  an  order  of  injunction,  or  other  order, 
or  by  the  operation  of  any  appeal,  shall  not  constitute  any 
part  of  the  ten  years  aforesaid,  as  against  the  defendant  in 
such  judgment,  or  the  party  obtaining  such  orders  or  making 
such  appeal,  or  any  other  person  who  is  not  a  purchaser, 
creditor  or  mortgagee  in  good  faith.  But  whenever  an 
appeal  from  any  judgment  shall  be  pending,  and  the  under- 
taking requisite  to  stay  execution  on  such  judgment  shall 
have  been  given,  and  the  appeal  perfected  as  provided  in 
the  Code,  the  court  in  which  such  judgment  was  recovered 
may,  on  special  motion,  after  notice  to  the  person  owning 
the  judgment,  on  such  terms  as  they  shall  see  fit,  direct  an 
entry  to  be  made  by  the  clerk  on  the  docket  of  such  judge- 
ment, that  the  same  is  "  secured  on  appeal,  "  and  thereupon 
it  shall  cease,  during  the  pendency  of  said  appeal,  to  be  a 
lien  on  the  real  property  of  the  judgment-debtor,  as  against 
purchasers  and  mortgagees  in  good  faith, 

All  executions  issuing  upon  judgments  docketed  in  a 
county  other  than  that  in  which  the  original  judgment  was 
rendered,  shall  be  returned  to  the  court  from  which  they 
issued;  the  return  noted  on  the  Execution  Docket;  and  the 
executions  transmitted  to  the  clerk  of  the  court  in  which  the 
original  judgment  was  taken.  The  provisions  of  this  section 
shall  apply  to  existing  judgments  as  well  as  to  all  hereafter 
rendered. 


CIVIL  PROCEDURE.  95> 

TITLE    XI. 

OF    TOE    EXECUTION    OF    THE    JUDGMENT    IN    CIVIL   ACTIONS. 

Chapter  I.  The  execution. 

"      II.  Prccie(!in?s  supplements  rj  to  execution. 

CHAPTER  I. 

THE    EXECUTION. 

^255. — Execution  within  three  years  of  course. 

"Writs  of  execution  for  the  enforcement  of  judgments  as 
now  used  are  modified  in  conformity  to  this  title,  and  the 
party  in  -whose  favor  judgment  has  been  heretofore  or  shall 
hereafter  be  given,  and  in  case  of  his  death  his  personal 
representatives  duly  appointed,  may  at  any  time  within 
three  years  after  the  entry  of  judgment,  proceed  to  enforce 
the  same,  as  prescribed  by  this  title. 

The  provisions  of  this  title  shall  apply  to  existing  judg- 
ments except  in  the  cases  provided  for,  by  the  ordinance  of 
th £  Convention    of    this   State    entitled    "An    Ordinance   ^y* 
respecting  the  Jurisdiction  of  the  Courts   of  this   Sta?t£, 
ratified  14th  of  March  18G8,  which  shall  be  governed  by  the 
exsting  law. 

<256. — After  three   \ears,  to  be  issued  oit!}    by  leave  of  court.     Lea>e  how 
obtained. 

After  the  lapse  of  three  years  from  the  entry  of  judgment, 
an  execution  can  be  issued  only  by  leave  of  the  court,  upon 
motion,  with  personal  notice  to  the  adverse  party,  unless  he 
be  absent  or  non-resident,  or  cannot  be  found  to  make  such 
service,  in  which  case  such  service  may  be  made  by  publi- 
cation, or  in  such  other  manner  as  the  court  shall  direct. 
Such  leave  shall  not  be  given  unless  it  be  established  by  the 
oath  of  the  party,  or  other  satisfactory  proof,  that  the  judg- 
ment, or  some  part  thereof,  remains  unsatisfied  and  due. 


%  THE  CODE  OF 

But  the  leave  shall  not  be  necessary  when  execution  has 
been  issued  on  the  judgment  within  the  three  years  next 
preceeding  the  suing  for  execution,  and  returned  unsatisfied 
in  whole  or  in  part. 

§257.— Jndgnicnts,  how  enforced. 

Where  a  judgment  requires  the  payment  of  money,  or  the 
delivery  of  real  or  personal  property,  the  same  may  be 
enforced  in  those  respects  by  execution,  as  provided  in  this 
Title.  Where  it  requires  the  performance  of  any  other  act, 
a  certified  copy  of  the  judgment  may  be  served  upon  the 
party  against  whom  it  is  given,  or  the  person  or  officer  who 
is  required  thereby  or  by  law  to  obey  the  same,  and  his 
obedience  thereto  enforced.  If  he  refuse,  he  may  be  pun- 
ished by,  the  court  as  for  contempt. 

<j258.— The  different  kinds  of  execution. 

There  shall  be  three  kinds  of  execution ;  one  against  the 
property  of  the  judgment  debtor ;  another  against  his  per- 
son ;  and  the  third  for  the  delivery  of  the  possession  of  real 
or  personal  property,  or  such  delivery  with  damages  for 
withholding  the  same.  They  shall  be  deemed  the  A>cess 
of  the  court,  and  shall  be  subscribed  by  the  clerk,  and  where 
to  run  out  of  his  county,  sealed  with  the  seal  of  his  court. 

§259. — To  what  comities  execution  may  be  issned.    Execution  against  a  mar- 
ried woman. 

When  the  execution  is  against  the  property  of  the  judg- 
ment debtor,  it  may  be  issued  to  the  sheriff  of  any  county 
where  the  judgment  is  docketed.  When  it  requires  the 
delivery  of  real  or  personal  property,  it  must  be  issued  to 
the  sheriff  of  the  county  where  the  property,  or  some  part 
thereof,  is  situated.  Executions  may  be  issued  at  the  same 
time  to  different  counties. 

Real  property  adjudged  to  be  sold  must  be  sold  in  the 

county  where  it  lies,  by  the  sheriff  of  the  county,  or  by  a 

, referee  appointed  by  the  court  for  that  purpose;  and  there- 


CIVIL  PROCEDURE.  97 

upon  the  sheriff'  or  referee  must  execute  a  conveyance  to 
the  purchaser,  which  conveyance  shall  be  effectual  to  pass 
the  rights  and  interests  of  the  parties  adjudged  to  be  sold. 

An  execution  may  issue  against  a  married  woman,  and  it 
shall  direct  the  levy  and  collection  of  the  amount  of  the 
judgment  against  her  from  her  separate  property,  and  not 
otherwise. 

^260. — Execution  against  the  person,  in  what  eases. 

If  the  action  be  one  in  which  the  defendant  might  have 
been  arrested,  as  provided  in  section  one  hundred  and  forty- 
nine  and  section  one  hundred  and  forty-one,  an  execution 
against  the  person  of  the  judgment  debtor  may  be  issued  to 
any  county  within  the  State,  after  the  return  of  an  execution 
against  his  property  unsatisfied  in  whole  or  in  part.  But  no 
execution  shall  issue  against  the  person  of  a  judgment  debtor, 
unless  an  order  of  arrest  has  been  served,  as  in  this  act  pro- 
vided, or  unless  the  complaint  contains  a  statement  of  facts 
showing  one  or  more  of  the  causes  of  arrest  required  by  sec- 
tion one  hundred  and  forty  nine. 

§261. — Form  of  the  execution. 

The  excution  must  be  directed  to  the  sheriff,  or  coroner 
when  the  sheriff  is  a  party  or  interested,  subscribed  by  the 
clerk  of  the  court,  and  must  intelligibly^refer  to  the  judg- 
ment, stating  the  county  jvitere  t-fee  judgment-roll  or  trans- 
cript is  filed,  the  names  of  the  parties,  the  amount '  of  the 
judgment,  if  it  be  for  money,  and  the  amountractually  due 
thereon,  and  the  time  of  docketing^in  the  'county  to-  which 
the  execution  is  issued,  and  shall  require  the'orS^er  substan- 
tially as  fojlows: 

1.  If  it  be  against  the  property  of  tl*e  judgment^ijebtor,  it 
shall  require  the  officer  to  satisfy  tiiewj*idgment"out,of  the 
personal  property, of  sucli  debtor;  and  if  sufficient  personal 
property  cannot^iutQundy-out  of  the  rea^rfopefty  belonging 
tonim  on  the  day  when  the  judgment  wasVTocketed  in  the 
county,  or  at  anv  time^thereafter.  <4*f  v 

"ii 


[)S  THE  CODE  OF 

2.  If  it  be  against  real  or  personal  property  in  the  hands 
of  personal  representatives,  heirs,  devisees,  legatees,  tenants 
of  real  property  or  trustees,  it  shall  require  the  officer  to 
satisfy  the  judgment  out  of  such  property. 

3.  If  it  be  against  the  person  of  the  judgment  debtor,  it 
shall  require  the  officer  to  arrest  such  debtor,  and  commit 
him  to  the  jail  of  the  county  until  he  shall  pay  the  judg- 
ment or  be  discharged  according  to  law. 

4.  If  it  be  for  the  delivery  of  the  possession  of  real  or 
personal  property,  it  shall  require  the  officer  to  deliver  the 
possession  of  the  same,  particularly  describing  it,  to  the 
party  entitled  thereto,  and  may  at  the  same  time  require  the 
officer  to  satisfy  any  costs,  damages,  or  rents  or  profits 
recovered  by  the  same  judgment,  out  of  the  personal  prop- 
erty of  the  party  against  whom  it  was  rendered,  and  the 
value  of  the  property  for  which  the  judgment  was  recovered, 
to  be  specified  therein;  if  a  delivery  thereof  cannot  be  had, 
and  if  sufficient  personal  property  cannot  be  found,  then  out 
of  the  real  property  belonging  to  him  on  the  day  when 
the  judgment  was  docketed,  or  at  any  time  thereafter, 
and  shall  in  that  respect  be  deemed  an  execution  against 
property. 

£262.— To  be  returnable  in  sixty  days. 

The  execution  shall  be  returnable  within  sixty  days,  after 
its  receipt  by  the  officer,  to  the  clerk  with  whom  the  record 
of  judgment  is  filed. 

<:Jt>3.— Existing  laws  relating  t;>  execution  continced,  nnti!  otherwise  provided. 

Until  otherwise  provided  by  the  Legislature,  the  existing 
provisions  of  law,  not  in  conflict  with  this  chapter,  relating 
to  executions  and  their  incidents,  the  property  liable  to  sale 
on  execution,  the  sale  and  redemption  thereof,  the  powers 
and  rights  of  officers,  their  duties  thereon,  and  the  proceed- 
ings to  enforce  those  duties,  and  the  liability  of  their  sure- 
ties sha!l  apply  to  the  executions  prescribed  by  this  chapter. 


CIVIL  PROCEDURE.  99 

But  the  sheriff  may  sell  on  due  advertisement  on  the  first 
three  days  in  any  month,  and  if  one  of  them  be  Sunday  it 
shall  not  be  counted. 


CHAPTER   II. 

PROCEEDINGS    SUPPLEMENTARY    TO    THE    EXECUTION. 

£26i.— Existing  suits— Order  for  discovery  of  property,  examination  of  judg- 
ment debtor,  &c. 

(1.)  "When  an  execution  against  property  of  the  judgment 
debtor,  or  any  one  of  several  debtors  in  the  same  judgment 
issued  to  the  sheriff  of  the  county  where  he  resides  or  has 
a  place  of  business,  or  if  he  do  not  reside  in  the  State,  to 
the  sheriff  of  the  county  where  a  judgment-roll  or  a  tran- 
script of  a  Justice's  judgment  for  twenty-five  dollars,  or 
upwards,  exclusive  of  costs,  is  filed",  is  returned  unsatisfied, 
in  whole  or  in  part,  the  judgment  creditor,  at  any  time  after 
such  return  made,  is  entitled  to  an  order  from  the  court  to 
which  the  execution  is  returned,  or  from  the  Judge  thereof, 
requiring  such  debtor  to  appear  arid  answer  concerning  his 
property,  before  such  court  or  Judge,  at  a  time  and  place 
specified  in  the  order,  within  the  county  to  which  the 
execution  was  issued.  (2.)  After  the  issuing  of  an  execu- 
tion against  property,  and  upon  proof  by  affidavit,  of  a 
party  or  otherwise,  to  the  satisfaction  of  the  court,  or  a 
Judge  thereof,  that  any  judgment  debtor,  residing  in  the 
judicial  district  where  such  Judge  or  officer  resides,  has 
property  which  he  unjustly  refuses  to  apply  towards  the 
satisfaction  of  the  judgment,  such  court  or  Judge  may,  by 
an  order,  require  the  judgment  debtor  to  appear  at  a  speci- 
fied time  and  place,  to  answer  concerning  the  same ;  and 
such  proceedings  may  thereupon  be  had  for  the  application 
of  the  property  of  the  judgment  debtor  towards  the  satis- 
faction of  the  judgment  as  are  provided  upon  the  return  of 
an  execution.     (3.)  On  an  examination  under  this  section, 


100  THE  CODE  OF 

either  party  may  examine  witnesses  in  his  behalf,  and  the 
judgment  debtor  may  be  examined  in  the  same  manner  as 
a  witness.  (4.)  Instead  of  the  order  requiring  the  attend- 
ance of  the  judgment  debtor,  the  Judge  may,  upon  proof 
by  affidavit  or  otherwise,  to  his  satisfaction,  that  there  is 
danger  of  the  debtor's  leaving  the  State,  or  concealing  him- 
self, and  that  there  is  reason  to  believe  he  has  property 
which  he  unjustly  refuses  to  apply  to  such  judgment,  issue 
a  warrant  requiring  the  sheriff  of  any  county  where  such 
debtor  may  be,  to  arrest  him  and  bring  him  before  such 
Judge.  Upon  being  brought  before  the  Judge,  he  may  be 
examined  on  oath,  and,  if  it  then  appears  that  there  is 
danger  of  the  debtor  leaving  the  State,  and  that  he  has 
property  which  he  has  unjustly  refused  to  apply  to  such 
judgment,  ordered  to  enter  into  an  undertaking,  with  one 
or  more  sureties,  that  he  will,  from  time  to  time,  attend 
before  the  Judge  as  he  shall  direct,  and  that  he  will  not, 
during  the  pendency  of  the  proceedings,  dispose  of  any 
property  not  exempt  from  execution.  In  default  of  enter- 
ing- into  such  undertaking,  he  may  be  committed  to  prison 
by  warrant  of  the  Judge,  as  for  a  contempt.  (5.)  No  person 
shall,  on  examination  pursuant  to  this  chapter,  be  excused 
from  answering  any  question  on  the  ground  that  his  exam- 
ination will  tend  to  convict  him  of  the  commission  of  a 
fraud;  but  his  answer  shall  not  be  used  as  evidence  against 
him  in  any  criminal  proceeding  or  prosecution;  Nor  shall 
he  be  excused  from  answering  any  question,  on  the  ground 
that  he  has,  before  the  examination,  executed  any  convey- 
ance, assignment  or  transfer  of  his  property  for  any  pur- 
pose, but  his  answer  shall  not  be  used  as  evidence  against 
him  in  any  criminal  proceeding  or  prosecution. 

t/265.— Existing  suits— Any  debtor  may  pay  execution  against  his  creditor. 

After  the  issuing  of  execution  against  property,  any 
person  indebted  to  the  judgment  debtor  may  pay  to  the 
sheriff  the  amount  of  his  debt,  or  so  much  thereof  as  shall 
be  necessary  to  satisfy  the  execution;  and  the  sheriff's 
receipt,  shall  be  a  sufficient  discharge,  for  the  amount  so 
paid. 


CIVIL  PROCEDURE.  101 

§266.— Existing  suits.    Examination    of  debtors  of  judgment  debtor,  or  of 
those  having  property  belonging  to  him.    Joint  debtor. 

After  the  issuing  or  return  of  an  execution  against  pro- 
perty of  the  judgment  debtor,  or  of  any  one  of  several  debtors 
in  the  same  judgment,  and  upon  affidavit  that  any  person 
or  corporation  has  property  of  such  judgment  debtor,  or  is 
indebted  to  him  in  an  amount  exceeding  ten  dollars,  the 
Judge  may,  by  an  order,  require  such  person  or  corporation, 
or  any  officer  or  member  thereof,  to  appear  at  a  specified 
time  and  place,  and  answer  concerning  the  same.  The 
Judge  may  also,  in  his  discretion,  require  notice  of  such 
proceeding  to  be  given  to  any  party  to  the  action,  in  such 
manner  as  may  seem  to  him  proper. 

The  proceedings  mentioned  in  this  section  and  in  section 
two  hundred  and  sixty-four  may  be  taken  upon  the  return 
of  an  execution  unsatisfied,  issued  upon  a  judgment  recov- 
ered in  an  action  against  joint  debtors,  in  which  some  of  the 
defendants  have  not  been  served  with  the  summons  by 
which  said  action  was  commenced,  so  far  as  relates  to  the 
joint  property  of  such  debtors;  and  all  actions  by  creditors 
to  obtain  satisfaction  of  judgments  out  of  the  property  of 
joint  debtors  are  maintainable  in  the  like  manner  and  to  the 
like  effect.  These  provisions  shall  apply  to  all  proceedings 
and  actions  now  pending,  and  not  actually  terminated  by 
any  final  judgment  or  decree,  and  not  embraced  in  the 
Ordinance  of  the  Convention  of  this  State,  entitled  "  An 
Ordinance  respecting  the  Jurisdiction  of  the  Courts  of  this 
State,  "  ratified  fourteenth  day  of  March  1868. 

5267. — Existing  suits.    Witnesses  required  to  testify. 

Witnesses  may  be  required  to  appear  and  testify  on  any 
proceedings  under  this  chapter,  in  the  same  manner  as  upon 
the  trial  of  an  issue. 

§268.— Existing  suit.    Compelling  party  or  witnesses  to  attend. 

The  party  or  witness  may  be  required  to  attend  before  the 
Judge,  or  before  a  referee  appointed  by  the  court  or  Judge ; 
if  before  a  referee,  the  examination  shall  be  taken  by  the 


102  THE  CODE  OF 

referee,  and  certified  to  the  Judge.  All  examinations  and! 
answers  before  a  Judge  or  referee,  under  this  chapter,  shall 
be  on  oath,  except  that  when  a  corporation  answers,  the 
answer  shall  be  on  the  oath  of  an  afficer  thereof. 

§269. — Existing  suits.    What  property  may  be  ordered  to  be  applied  to  the 
execution.        J 

The  Judge  may  order  any  property  of  the  judgment 
debtor,  not  exempt  from  execution,  in  the  hands  either  of 
himself  or  any  Other  person,  or  due  to  the  judgment  debtor, 
to  be  applied  towards  the  satisfaction  of  the  judgment:, 
except  that  the  earnings  of  the  debtor  for  his  personal  ser- 
vices, at  any  time  within  sixty  days  next  preceeding  the 
order,  cannot  be  so  applied  when  it  is  made  to  appear,  by  the 
debtor's  affidavit  or  otherwise,  that  such  earnings  are  neces- 
sary for  the  use  of  a  family  supported  wholly  or  partly  by 
his  labor. 

</Z10. — Existing  suits.     Judge  may  appoint  receiver  and  prohibit  transfer, 
&c,  of  property.    Order,  &c. 

The  Judge  may  also,  by  order,  appoint  a  receiver  of  the 
property  of  the  judgment  debtor,  in  the  same  manner,  and 
with  the  like  authority,  as  if  the  appointment  was  made  by 
the  court,  according  to  section  two  hundred  and  fifteen.  But 
before  the  appointment  of  such  receiver,  the  Judge  shall 
ascertain,  if  practicable,  by  the  oath  of  the  party  or  other- 
wise, whether  any  other  supplementary  proceedings  are 
pending  against  the  judgment  debtor,  and  if  such  proceed- 
ings are  so  pending,  the  plaintiff  therein  shall  have  notice 
to  appear  before  him,  and  shall  likewise  have  notice  of  all 
subsequent  proceedings  in  relation  to  said  receivership.  No 
more  than  one  receiver  of  the  property  of  a  judgement 
debtor  shall  be  appointed.  The  Judge  may  also,  by  order, 
forbid  a  transfer  or  other  disposition  of  the  property  of  the 
judgment  debtor  not  exempt  from  execution,  and  any  inter- 
ference therewith. 


CIVIL  PROCEDURE.  103 

Whenever  +lie  JuclSe  sha11  £mnt  an  order  for  the  appoint- 
,    f  •        r  *  the  property  of  the  judgment  debter, 

ment  of  a  receiver  o.  tUL  ?>  r     •>  i.   ?    ,,     c 

u  ii  i     x:i  ^  -~  *!■*  office  of  the  Clerk  of  the  bupe- 
the  same  shall  be  hied  in  the  u*uwv  .      * 

n       ,     „  „  .         i  ,,'  a  'itu  ifftnent-roll  m  the 

rior  Court  of  the  county  where  the*  JUv£> 

action  or  transcript  from  justice's  judgment,  UpOP-W  ic  ie 
proceedings  are  taken,  is  filed;  and  the  clerk  shu.  r 
the  order  in  a  book  to  be  kept  for  that  purpose  in  his  office, 
to  be  called  "  Book  of  orders  appointing  receivers  ot  judg- 
ment debtors,  "  and  shall  note  the  time  of  the  filing  of  said 
order  therein.  A  certified  copy  of  said  order  shall  be  deliv- 
ered to  the  receiver  named  therein,  and  he  shall  be  vested 
with  the  property  and  effects  of  the  judgment  debtor  from 
the  time  of  the  filing  and  recording  of  the  order  as  aforesaid. 
The  receiver  of  the  judgment  debtor  shall  be  subject  to  the 
direction  and  control  of  the  court  in  which  the  judgment 
was  obtained  upon  which  the  preceedings  are  founded. 

But  before  he  shall  be  vested  with  any  real  property  of 
such  judgment  debtor,  a  certified  copy  of  said  order  shall 
also^e  filed  and  recorded  on  the  execution  docket,  in  the 
office  of  the  clerk  of  the  Superior  Court  of  the  county  in 
which  any  real  estate  of  such  judgment  debtor  sought  to  be 
effected  by  such  order  is  situated,  and  also  in  the  office  of 
the  clerk  of  the  Superior  Court  of  the  county  in  which  such 
judgment  debtor  resides. 

$271t— Existing  suits— Proa  :on  daim  of  another  party  to  p!  i>i 

an  denial  of  indebtedness  to  judgment  debtor. 

If  it  appear  that  a  person  or  corporation  alleged  to  have 
property  of  the  judgment  debtor,  or  indebted  to  him,  claims 
an  interest  in  the  property  adverse  to  him,  or  denies  the 
debt,  such  interest  or  debt  shall  be  recoverable  only  in  an 
action  against  such, person  or  corporation  by  the  receiver; 
but  the  Judge 'may,  by  order,  forbid  a  transfer  or  other  dis- 
position of  such  property  or  interest,  till  a  sufficient  oppor- 
tunity be  given  to  the  receiver  to  commence  the  action,  and 
prosecute  the  same  to  judgment  and  execution;  but  such 
order  may  be  modified  or  dissolved  by  the  Judge  granting 
the  same,  at  any  time,  on  such  security  as  he  shall  direct. 


104  THE  CODE  OF 

$272.— Existing  suits—  Reference  by  Judge. 

The  Judge  may,  in  his  discretion,  order  a  reference  to  a 
referee  agreed  upon  by  the  parties,  or  appointed  by  him,  to 
report  the  evidence  or  the  facts,  and  may,  in  his  discretion, 
appoint  such  referee  in  the  first  order,  or  at  any  time. 

$273.— Existing  snits— Cost  of  proceeding. 

The  Judge  may  allow  to  the  judgment  creditor,  or  to  any 
party  so  examined,  whether  a  party  to  the  action  or  not, 
witnesses'  fees  and  disbursements,  and  a  fixed  sum  in  addi- 
tion, not  exceeding  thirty  dollars,  as  costs. 

$274.— Existing  snits— Disobedience  of  order,  how  punished. 

If  any  person,  party,  or  witness,  disobey  an  order  of  the 
Judge  or  referee,  duly  served,  such  person,  party,  or  witness, 
may  be  punished  by  the  Judge  as  for  a  contempt.  And 
in  all  cases  of  commitment  under  this  chapter,  the  person 
committed  may,  in  case  of  inability  to  perform  the  act 
required,  or  to  endure  the  imprisonment,  be  discharged 
from  imprisonment  by  the  court  or  Judge  committing  him, 
or  the  court  in  which  the  judgment  was  rendered,  on  such 
terms  as  may  be  just. 

The  sections  of  this  chapter,  from  section  two  hundred 
and  sixty-four,  to  section  two  hundred  and  seventy-fiu  r  loth 
inclusive,  shall  be  applicable  to  all  judgments  which  shall 
be  recovered  after  the  ratification  of  this  Act,  except  judg- 
ments upon  causes  of  action  embraced  in  the  provisions  of 
an  Ordinance  passed  by  the  Convention  of  this  State,  entitled 
"  An  Ordinance  respecting  the  Jurisdiction  ol  the  Courts  of 
this  State,"  ratified  on  the  fourteenth  of  March,  186S,  which 
shall  be  governed  by  the  existing  laws. 


CIVIL  PROCEDURE.  105 

TITLE    XII. 

OF    TIIE    COSTS    IX    CIYir,   ACTIONS. 

§275.— Fee  bill  of  attorneys  abolished. 

All  statutes  establishing  or  regulating  the  costs  or  fees  of 
attorneys,  solicitors,  and  counsel  in  civil  actions,  and  all 
existing  rules  and  provisions  of  law  restricing  or  controlling 
the  right  of  a  party  to  agree  with  an  attorney,  solicitor,  or 
counsel,  for  his  compensation  are  repealed;  and  hereafter 
the  measure  of  such  compensation  shall  be  left  to  the  agree- 
ment, express  or  implied,  X)f  the  parties.  But  there  may  be 
allowed  to  the  prevailing  party,  upon  the  judgment,  certain 
sums  by  way  of  indemnity  for  his  expenses  in  the  action , 
which  allowances  are  in  this  act  termed  costs. 

i2T6.— When  allowed  of  course  to  the  plaintiff.— Several  actions  on  one  instru- 
ment. 

Costs  shall  be  allowed  of  course  to  the  plaintiff,  upon  a 
recovery,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  real  property,  or  when 
a  claim  of  title  to  real  property  arises  on  the  pleadings,  or 
is  certified  by  the  court  to  have  come  in  question  at  the 
trial ; 

2.  In  an  action  to  recover  the  possession  of  personal 
property ; 

3.  In  the  actions  of  which  a  court  of  Justice  of  the  Peace 
has  no  jurisdiction ; 

4.  In  an  action  for  the  recovery  of  money,  where  the 
plaintiff  shall  recover  fifty  dollars;  but  in  an  action  for 
assault,  battery,  false  imprisonment,  libel,  slander,  malicious 
prosecution,  criminal  conversation,  or  seduction,  if  the  plain- 
tiff recover  less  than  fifty  dollars  damages,  he  shall  recover 
no  more  cost  than  damages.  And  in  an  action  to  recover 
the  possesion  of  personal  property,  if  the  plaintiff  recover 
less  than  fifty  dollars  damages,  he  shall  recover  no  more 
costs  than  damages,  unless  he  recovers  also  property,  the 


106  THE  CODE  OF 

value  of  which,  with  the  damages,  amounts  to  fifty  dollars, 
or  the  possession  of  property  be  adjudged  to  him,  the  value 
of  which,  with  the  damages,  amounts  to  fifty  dollars;  such 
value  must  be  determined  by  the  jury,  court,  or  referee  by 
whom  the  action  is  tried.  When  several  actions  shall  be 
brought  on  one  bond,  recognizance,  promissory  note,  bill  of 
exchange,  or  other  instrument  in  writing,  or  in  any  other 
case,  for  the  same  cause  of  action,  against  several  parties 
who  might  have  been  joined  as  defendants  in  the  same 
action,  no  costs  other  than  disbursements  shall  be  allowed 
to  the  plaintiff  in  more  than  one  of  such  actions,  which 
shall  be  at  his  election,  provided  that  the  party  or  parties 
proceeded  against  in  such  other  action  or  actions  shall  at  the 
time,  of  the  commencement  of  the  previous  action  or  actions 
have  been  within  the  State,  and  not  secreted. 

§277. — When  allowed  to  defendant. 

Costs  shall  be  allowed  of  course  to  the  defendant,  in  the 
actions  mentioned  in  the  last  section,  unless  the  plaintiff  be 
entitled  to  costs  therein. 

()i7S. — When  allowed  to  either  party,  in  the  diseretiou  of  the  eonH. 

In  other  actions,  costs  may  be  allowed  or  not,  in  the  dis- 
cretion of  the  court 

In  all  actions  where  there  are  several  defendants  not 
united  in  interest,  and  making  separate  defences  by  separate 
answers,  and  the  plaintiff  fails  to  recover  judgment  against 
all,  the  court  may  award  costs  to  such  of  the  defendants  as 
have  judgment  in  their  favor,  or  any  of  them. 

In  the  following  cases  the  costs  of  an  appeal  to  any  court 
shall  be  in  the  discretion  of  the  court: 

1.  When  a  new  trial  shall  be  ordered; 

2.  When  a  judgment  shall  be  affirmed  in  part,  and 
reversed  in  part. 

§279. — Amount  of  costs  allowed. 

When  allowed  costs  shall  be  as  follows: 

1.  To  either  party  for  whom  judgment  shall  be  given,  his 
actual  disbursements  for  fees  to  the  officers  entitled  to  receive 
fees;  and  in  addition  thereto, 


CIVIL  PROCEDURE.  107 

2.  To  the  plaintiff  when,  in  any  action  or  proceeding, 
judgment  shall  be  rendered  for  him  by  confession;  or  for 
want  of  an  answer,  or  for  other  plea  of  the  defendant,  ten 
dollars. 

3.  To  the  defendant  when  judgment  shall  be  rendered 
for  him  against  the  plaintiff  by  confession,  or  for  want  of  a 
complaint  or  pleading  of  any  sort,  ten  dollars. 

4.  To  either  party  in  whose  favor  judgment  shall  be  ren- 
dered by  the  Judge,  on  an  appeal  from  any  order  or  decision 
of  the  Clerk  of  the  Superior  Court,  five  dollars. 

5.  To  either  party  in  whose  favor  judgment  shall  be  given 
by  a  Judge,  on  an  issue  of  law  joined  on  the  pleadings,  if 
argued  by  counsel  before  the  Judge,  ten  dollars ;"  if  not  so 
argued,  five  dollars. 

7.  To  either  party  recovering  judgment  uponVi  trial  by 
Jury,  fifteen  dollars ;  and  if  the  trial  shall  necessarily  occupy 
more  than  one  day,  five  dollars  for  every  additional  day. 

8.  On  every  order  for  the  postponement  of  the  trial  to 
another  term  made  before  a  term  at  which  it  is  triable,  three 
dollars,  to  be  paid  or  not,  by  the  party  making  the  applica- 
tion, in  the  discretion  of  the  court. 

9.  On  every  order  for  the  postponement  of  the  trial  to 
another  term,  made  during  a  term  at  which  the  case  is 
triable,  five  dollars,  besides  the  actual  disbursements  of  the 
adverse  party  in  procuring  the  attendance  and  payment  of 
his  witnesses,  to  be  paid  by  the  party  making  the  appli- 
cation, unless  the  Judge  in  his  discretion  shall  order 
otherwise. 

10.  In  addition  to  the  above,  to  either  party  where  a  new 
trial  shall  be  had,  for  ail  proceedings  after  the  granting  of 
such  new  trial,  including  the  trial,  fifteen  dollars;  for  attend- 
ing upon  and  taking  the  deposition  of  a  witness  condition- 
ally, or  attending  to  perpetuate  his  testimony,  five  dollars: 
for  drawing  interrogatories  to  annex  to  a  commission  for  the 
taking  of  testimony,  three  dollars;  for  attending  the  exam- 
ination of  a  party  before  trial,  three  dollars;  for  making  and 
serving  a  case,  or  case  containing  exceptions,  five  dollars, 
except  that  where  the  case  shall  necessarily  contain  more 


108  THE   CODE  OF 

than  fifty  folios,  there  shall  be  allowed  five  dollars  in  addi- 
tion thereto;  and  for  making  and  serving  amendments 
thereto,  five  dollars.  Provided  that  the  costs  for  making 
and  serving  a  case,  or  case  with  exceptions,  shall  only  be 
allowed  where  the  case  was  not  excepted  to  by  the  adverse 
party,  or,  when  being  excepted  to,  it  was  approved  by  the 
Judge;  and  costs  for  amendments  proposed  thereto  by  the 
adverse  party,  shall  only  be  allowed  when  the  amendments 
shall  be  material  and  accepted  by  the  adverse  party,  or  not 
being  accepted,  shall  be  approved  by  the  Judge.  If  the  case 
and  amendments  proposed  be  each  partly  allowed  and  partly 
disallowed  by  the  Judge,  no  costs  shall  be  allowed  to  either 
party.  To  the  plaintiff  for  procuring  the  appointment  of 
a  guardian  of  an  infant  defendant,  two  dollars;  and  no 
more  shall  be  allowed  for  the  appointment  of  guardians  in 
any  one  action.  To  the  plaintiff  for  procuring  an  order  of 
injunction,  ten  dollars. 

11.  To  either  party  on  appeal  to  the  Supreme  Court, 
thirty  dollars;  and  when  a  judgment  is  affirmed,  the  court 
may,  in  its  discretion,  also  award  damages  for  the  delay, 
not  exceeding  ten  per  cent,  on  the  amount  of  the  judgment. 
The  same  costs  shall  be  allowed  to  the  plaintiff  in  proceed- 
ings under  chapter  two,  title  XIV,  sections  three  hundred 
and  eighteen  to  three  hundred  and  twenty-four,  both  inclu- 
sive, as  upon  the  commencement  of  an  action. 

<j280. — Additional  allowance. 

In  addition  to  these  allowancesT  there  shall  be  allowed  to 
the  plaintiff,  upon  the  recovery  of  judgment  by  him,  in 
any  action  for  the  partition  of  real  property,  or  for  the  fore- 
closure of  a  mortgage,  or  in  any  action  in  which  a  warrant 
of  attachment  has  been  issued,  or  for  an  adjudication  upon 
a  will  or  other  instrument  in  writing,  and  in  proceedings 
to  compel  the  determination  of  claims  to  real  property,  the 
sum  of  five  per  cent,  on  the  recovery,  as  in  the  next  section 
prescribed,  for  any  amount  not  exceeding  two  hundred 
•dollars;  and  additional  sum  of  three  per  cent,  for  any  addi- 


CIVIL  PROCEDURE.  109 

tional  amount  not  exceeding  four  hundred  dollars;  and  an 
additional  sum  of  two  per  cent,  for  any  additional  amount 
not  exceeding  one  thousand  dollars. 

And  in  the  actions  above  named,  if  the  same  shall  be 
settled  before  judgment  therein,  like  allowances  upon  the 
amount  paid  or  secured  upon  such  settlement,  at  one-half 
the  rates  above  specified. 

$281.— Allowance,  how  computed— Difficult  aad  extraordinary  cases. 

These  rates  shall  be  estimated  upon  the  value  of  the 
property  claimed  or  attached,  or  affected  by  the  adjudica 
tion  upon  the  will  or  other  instrument,  or  sought  to  be 
partitioned,  or  the  amount  found  due  or  unpaid  upon  the 
mortgage  in  an  action  for  foreclosure.  And  whenever  it 
shall  be  necessary  to  apply  to  the  court  for  an  order  enforc- 
ing the  payment  of  an  installment  falling  due,  after  judg- 
ment, in  an  action  for  foreclosure,  the  plaintiff  shall  be 
entitled  to  the  rate  of  allowance  in  the  last  section  prescribed  ■ 
but  to  no  more  in  the  aggregate  than  if  the  whole  amount 
of  the  mortgage  had  been  due  when  judgment  was  entered. 
Such  amount  of  value  must  be  determined  by  the  court  or 
by  the  commissioners,  in  case  of  actual  partitions.  In 
difficult  and  extraordinary  cases,  where  a  defence  has  been 
interposfcfl,  or  in  sucli  cases  where  a  trial  has  been  had,  and 
in  actions  or  proceedings  for  the  partition  of  real  estate,  the 
court  may  also,  in  its  discretion,  make  a  further  allowance 
to  any  party,  not  exceeding  five  per  cent,  upon  the  amount 
of  the  recovery  or  claim,  or  subject-matter  involved. 

$2  82— Report,  when  allowed. 

When  the  judgment  is  for  the  recovery  of  money,  interest, 
from  the  time  of  the  verdict  or  report  until  judgment  be 
finally  entered,  shall  be  computed  by  the  clerk,  and  added 
to  the  costs  of  the  party  entitled  thereto. 

$283. — Costs,  how  to  be  inserted   in  judgment.    Adjustment]  of  interlocutory 
eosts. 

The  Clerk  shall  insert  in  the  entry  of  judgment,  on  the 

application  of  the  prevailing  party,  upon  five  days  notice  to 

l.e  other,  the  sum  of  the  allowances  for  costs,  as  provided 


.110  THE  CODE  OF 

by  this  Code,  the  necessary  disbursements,  including  the 
fees  of  officers  allowed  by  law,  the  fees  of  witnesses,  the  rea- 
sonable compensation  of  commissioners  in  taking  depositions, 
the  fees  of  referees,  and  the  expense  of  printing  the  papers 
for  any  hearing  when  required  by  a  rule  of  the  court.  The 
disbursements  shall  be  stated  in  detail  and  verified  by  affi- 
davit. A  copy  oi  the  items  of  the  costs  and  disbursements 
shall  be  served,  with  a  notice  of  adjustment. 

Whenever  it  shall  be  necessary  to  adjust  costs  in  any 
interlocutory  proceeding  in  an  action,  or  in  any  special  pro- 
ceedings, the  same  shall  be  adjusted  by  the  Judge  before 
whom  the  same  may  be  heard,  or  the  court  befoie  which  the 
same  may  be  decided  or  pending,  or  in  such  other  manner 
as  the  Judge  or  court  may  direct. 

§284.— Fees  of  clerks,  sheriffs,  &e. 

The  fees  of  the  clerk,  sheriff  and  other  officers  of  the  court, 
shall  be  as  prescribed  by  law. 

</285.— Referees'  fee. 

The  fees  of  referees  shall  be  three  dollars  to  each,  for  every 
day  spent  in  the  business  of  the  reference;  but  the  parties 
may  agree  in  writing  upon  any  other  rate  of  compensatoin. 

\,2  86.— Costs  against  iafast  plaintiff. 

When  costs  are  adjudged  against  an  infant  plaintiff,  the 
guardian  by  whom  he  appeared  in  the  action  shall  be 
responsible  therefor,  and  payment  thereof  may  be  forced  by 
attachment. 

§287»— Costs  in  action  by  or  against  an  executor  or  administrator,  trustees  of 
an  rx;>fess  trust,  or  a  person  expressly  authorized  by  statute  to  sue. 

(1.)  In  an  action  prosecuted  or  defended  by  an  executor, 
administrator,  trustee  of  an  express  trust,  or  a  person 
expressly  authorized  by  statute,  costs  shall  be  recovered,  as 
in  an  action  by  and  against  a  person  prosecuting  or  defend- 
ing in  his  own  right;  but  such  costs  shall  be  chargeable  only 


CIVIL  PROCEDURE.  Ill 

upon  or  collected  of  the  estate,  fund,  or  party  represented, 
unless  the  court  shall  direct  the  same  to  he  paid  by  the 
plaintiff  or  defendant  personally,  for  mismanagement  or  bad 
faith  in  such  action  or  defence.  But  this  section  shall  not  be 
construed  to  allow  costs  against  executors  or  administra- 
tors where  they  are  now  exempted  therefrom  by  law.  (2.) 
And  whenever  any  claim  against  a  deceased  person  shall  be 
referred,  the  prevailing  party  shall  be  entitled  to  recover  the 
fees  of  referees  and  witnesses,  and  other  necessary  disburse- 
ments, to  be  taxed  according  to  law. 

<J2SS— Costs  in  civil  actions  by  tie  State. 

In  all  civil  actions  prosecuted  in  the  name  of  the  State,  by 
an  officer  duly  authorized  for  that  purpose,  the  State  shall  be 
liable  for  costs  in  the  same  cases  and  to  the  same  extent  as 
private  parties.  If  a  private  person  be  joined  with  the  State 
as  plaintiff,  he  shall  be  liable  in  the  first  instance  for  the 
defendant's  costs,  which  shall  not  be  recovered  of  the  State 
till  after  execution  issued  therefor  against  such  private  party 
and  returned  unsatisfied. 

£2S9. — Costs  iu  aciiou  by  the  State  for  a  private  person, 

In  an  action  prosecuted  in  the  name  of  the  State  for  the 
recovery  of  money  or  property,  or  to  establish  a  right  or 
claim  for  the  benefit  of  any  county,  city,  town,  village,  cor- 
poration or  person,  costs  awarded  against  the  plaintiff  shall 
be  a  charge  against  the  party  for  whoso  benefit  the  action 
was  prosecuted,  and  not  against  the  State. 

<>290.— Costs  against  assignee  after  action  brcngbi,  of  caase  of  action. 

In  actions  in  which  the  cause  of  action  shall  by  assign- 
ment after  the  commencement  of  the  action,  or  in  any  other 
manner,  become  the  property  of  a  person  not  a  party  to  the 
action,  such  person  shall  be  liable  for  the  costs,  in  the  same 
manner  as  if  he  were  a  party,  and  payment  thereof  may  be 
enforced  bv  attachment. 


112  THE  CODE  OF 

§291.— -Costs  on  a  .settlement. 

Upon  the  settlement,  before  judgmeut  of  any  action  men- 
tioned in  section  two  hundred  and  seventy-six,  no  greater 
sum  shall  be  demanded  from  the  defendant  as  costs  than  at 
the  rates  prescribed  by  that  section. 

§292.— Costs  on  appeals. 

On  an  appeal  from  a  Justice  of  the  Peace,  to  a  Superior 
Court,  or  from  a  Superior  Court  or  a  Judge  thereof,  to  the 
Supreme  Court,  if  the  appellant  shall  recover  judgment  in 
the  appellate  court,  he  shall  recover  the  costs  of  the  appel- 
late court,  and  those  he  ought  to  have  recovered  below,  had 
the  judgment  of  that  court  been  correct,  and  also  restitution 
of  any  costs  of  the  court  appealed  from,  which  he  shall  have 
paid  under  the  erroneous  judgment  of  such  court. 

If  in  any  court  of  appeal  there  shall  be  judgment  for  a 
new  trial,  or  for  a  new  jury,  or  if  the  judgment  appealed 
from,  be  not  wholly  reversed,  but  partly  affirmed  and  partly 
disaffirmed,  the  costs  shall  be  in  the  discretion  of  the  appel- 
late court. 

§293. — Costs  in  existing  actions. 

Costs  in  actions  brought  before  the  ratification  of  this 
Act,  shall  be  according  to  existing  laws. 

§29i.— Costs  in  special  proceedings. 

The  costs  in  special  proceedings  shall  be  as  herein  allowed 
in  civil  actions,  unless  where  otherwise  specially  provided. 

§29.3. — On  appeals  from  Justices  of  the  Peace. 

After  an  appeal  from  the  judgment  of  a  Justice  of  the 
Peace  shall  be  filed  with  a  Clerk  of  a  Superior  Court,  the 
costs  in  all  subsequent  stages  shall  be,  as  herein  provided 
for  actions  originally  brought  to  the  Superior  Court, 


CIVIL  PROCEDURE.  113 

TITLE   XIII  . 

OF    APPEALL    IN    CIVIL   ACTIONS. 

CHAPTER  1. 

^2!>ti.— Writs  of  error  abolished,  and  appeals  substituted. 

Writs  of  error  in  civil  actions,  as  they  have  heretofore 
existed,  are  abolished ;  and  the  only  mode  of  reviewing  a 
judgment,  or  order,  in  a  civil  action,  shall  be  that  prescribed 
by  this  title. 

The  provisions  of  this  title  shall  apply  to  all  actions  tried 
after  the  Fall  Terms  of  the  Superior  Courts,  held  next  after 
the  ratification  of  this  Act.  The  existing  laws  shall  govern 
trials  and  appeals  in  said  Courts  at  said  Fall  Terms. 

<)29T. — Orders  made  ont  of  Court,  how  vacated  or  modified. 

An  order,  made  out  of  court,  without  notice  to  the  adverse 
party,  may  be  vacated  or  modified,  without  notice,  by  the 
Judge  who  made  it,  or  may  be  vacated  or  modified  on  notice, 
in  the  manner  in  which  other  motions  are  made . 

§298 — Existing  suits — who  may  appeal. 

Any  party  aggrieved  may  appeal  in  the  cases  prescribed  in 
this  title ;  this  section  shall  apply  to  existing  suits. 

i;2i)9. — Appeal — iu  what  cases  it  may  be  taken. 

An  appeal  may  be  taken  from  every  judicial  order  or 
determination  of  a  Judge  of  a  Superior  Court,  upon  or 
involving  a  matter  of  law  or  legal  inference,  whether  made 
in  or  out  of  term,  which  affects  a  substantial  right  claimed  in 
any  action  or  proceeding;  or  which  in  effect  determines  the 
action,  and  prevents  a  judgment  from  which  an  appeal 
might  be  taken;  or  discontinues  the  action,  or  grants  or 
refuses  a  new  trial, 
8 


114  THE  CODE  OF 

§300. — When  taken— execution  not  suspended,  when. 

The  appeal  must  be  taken  from  a  judgment  rendered  out 
of  term,  within  ten  days  after  notice  thereof,  and  from  a 
judgment  rendered  in  term,  within  ten  days  after  its  rendi- 
tion, but  execution  shall  not  be  suspended  until  the  giving 
by  the  appellant  of  the  undertakings  hereinafter  required  by 
sections  three  hundred  and  three,  to  three  hundred  and 
twelve,  both  inclusive  of  this  Code. 

$301.—  Appeal  to  be  entered  by  clerk  on  judgment  docket.   Case  how  stated  and 
settled. 

Within  the  time  prescribed  in  the  preceding  section,  the 
appellant  shall  cause  his  appeal  to  be  entered  by  the  clerk  on 
the  judgment  docket,  and  notice  thereof  to  be  given  to  the 
adverse  party.  He  shall  cause  to  be  prepared  a  concise 
statement  of  the  case,  embodying  the  instructions  of  the 
Judge  as  signed  by  him,  if  there  be  any  exception  thereto,, 
and  the  requests  of  the  counsel  of  the  parties  for  instructions 
if  there  be  any  exception  on  account  of  the  granting  or  with- 
holding thereof,  and  stating  separately  in  articles  numbered, 
the  errors  alleged.  A  copy  of  this  statement  shall  be 
served  on  the  respondent  as  provided  in  section  eighty, 
within  five  days  from  the  entry  of  the  appeal  taken ;  within 
three  days  after  such  service,  the  respondent  shall  return 
the  copy  with  his  approval  or  specific  amendments  endorsed 
or  attached;  if  the  case  be  approved  by  the  respondent,  it 
shall  be  filed  with  the  clerk  as  a  part  of  the  record;  if  not 
returned  with  objections  within  the  time  prescribed,  it  shall 
be  deemed  approved  ;  if  returned  with  objections  as  pre- 
scribed, the  appellant  shall  immediately  request  the  Judge 
to  fix  a  time  and  place  for  settling  the  case  before  him ;  and 
the  Judge  shall  forthwith  notify  the  attorneys  of  the  parties 
to  appear  before  him  for  that  purpose  at  a  certain  time  and 
place,  within  the  judicial  district,  which  time  shall  not  be 
more  than  twenty  days  from  the  receipt  of  such  request ; 
and  at  the  time  and  place  stated,  the  Judge  shall  settle  and 
sign  the  case,  and  deliver  a  copy  to  the  attorney  of  each 
party,  or  if  they  be  not  present,  file  a  copy  in  the  office  of  j 


CIVIL  PROCEDURE.  115 

the  clerk  of  the  court.  In  settling  the  case,  the  written 
instructions  signed  by  the  Judge,  and  the  written  requests 
for  instructions  signed  by  the  counsel,  and  filed  as  prescribed 
in  sections  two  hundred  and  thirty-eight  and  two  hundred 
and  thirty-nine,  shall  be  taken  as  conclusive  as  to  what 
such  instructions  and  requests  were.  If  a  copj1-  of  the  case 
settled,  was  delivered  to  the  appellant,  he  shall  within  five 
days  thereafter,  file  the  same  with  the  clerk,  and  in  case  he 
fail  to  do  so,  the  respondent  may  file  his  copy. 

<j302.— Clerk   to  make  copy  of  judgment   red  and  send  to  Clerk  of  Supreme 
Court. 

The  clerk  on  receiving  a  copy  of  the  case  settled,  as 
required  in  the  preceding  section,  shall  make  a  copy  of  the 
judgment  roll  and  of  the  case,  and  within  twenty  days, 
transmit  the  same,  duly  certified,  to  the  clerk  of  the  Supreme 
Court. 

(yi():l, — On  appeal,  security  most  be  given  or  deposit  made,  unless  waived. 

To  render  an  appeal  effectual  for  any  purpose,  a  written 
undertaking  must  be  executed  on  the  part  of  the  appellant 
by  at  least  two  sureties,  to  the  effect  that  the  appellant  will 
pay  all  costs  and  damages  which  may  be  awarded  against 
him  on  the  appeal,  not  exceeding  five  hundred  dollars,  or 
that  sum  must  be  deposited  with  the  clerk  with  whom  the 
judgment  or  order  was  entered,  to  abide  the  event  of  the 
appeal.  Such  undertaking  or  deposit  may  be  waived  by  a 
written  consent  on  the  part  of  the  respondent. 

V)30i.— Exiting  suits — On  judgment  for  money,  security  to  stay  execution — 
Mew  undertaking,  on  snreties  iu  first  becoming  insolvent. 

It  the  appeal  be  from  a  judgment  directing  the  payment 
of  money,  it  shall  not  stay  the  execution  of  the  judgment, 
unless  a  written  undertaking  be  executed  on  the  part  of  the 
appellant,  by  at  least  two  sureties,  to  the  effect  that,  if  the 
judgment  appealed  from,  or  any  part  thereof,  be  affirmed,  or 
the  appeal  be  dissmissed,  the  appellant  will  pay  the  amount 
directed  to  be  paid  by  the  judgment,  or  the  part  of  such 


116  THE  CODE  OF 

amount  as  to  which  the  judgment  shall  be  affirmed,  if  it  Le 
affirmed  only  in  part,  and  all  damages  which  shall  be 
awarded  against  the  appellant  upon  the  appeal.  Whenever 
it  shall  be  made  satisfactorily  to  appear  to  the  court  that  since 
the  execution  of  the  undertaking  the  sureties  have  become 
insolvent,  the  court  may,  by  rule  or  order,  require  the  appel- 
lant to  execute,  file  and  serve  a  new  undertaking  as  above; 
and  in  case  of  neglect  to  execute  such  undertaking  within 
twenty  days  after  the  service  of  a  copy  of  the  rule  or  order 
requiring  such  new  undertaking,  the  appeal  may,  on  motion 
to  the  court,  be  dismissed  with  costs.  Whenever  it  shall  be 
nec'essary  for  a  party  to  any  action  or  proceeding  to  give  a 
bond  or  an  undertaking,  with  surety  or  sureties,  he  may,  in 
lieu  thereof,  deposit  with  the  officer  or  into  court,  as  the 
case  may  require,  money  to  the  amount  for  which  such  bond 
or  undertaking  is  to  be  given.  The  court  in  which  such 
action  or  proceeding  is  pending  may  direct  what  disposition 
shall  be  made  of  such  money,  pending  the  action  or  pro- 
ceedings In  any  case  where,  by  this  section,  the  money  is 
to  be  deposited  with  an  officer,  a  judge  of  the  court,  at 
special  term,  or  at  chambers,  upon  the  application  of  either 
party,  may,  before  such  deposit  is  made,  order  it  to  be 
deposited  in  court  instead  of  with  such  officer;  and  a  deposit 
made,  pursuant  to  such  order,  shall  be  of  the  same  effect  as 
if  made  with  such  officer, 

g3©5.— Existing  suits — If  jndgmeut  bo  to  deliver  document  or  personal  pros- 
perty,  it  must  be  deposited,  or  security  be  given. 

If  the  judgment  appealed  from  direct  the  assignment  or 
delivery  of  documents  or  personal  property,  the  execution 
of  the  judgment  shall  not  be  stayed  by  appeal,  unless  the 
things  required  to  be  assigned  or  delivered  be  brought  into 
court,  or  placed  in  the  custody  of  such  officer  or  receiver  as 
the  court  shall  appoint,  or  unless  an  undertaking  be  entered 
into  on  the  part  of  the  appellant,  by  at  least  two  sureties, 
and  in  such  amount  as  the  court,  or  a  Judge  thereof, 
shall  direct,  to  the  effect  that  the  appellant  will  obey  the 
order  ot  the  appellate  court  upon  the  appeal. 


CIVIL  PROCEDURE.  117 

^306. — Existing  suits— If  to  execute  conveyance,  it  must   be  executed  and 
deposited. 

If  the  judgment  appealed  from  direct  the  execution  ot  a 
conveyance  or  other  instrument,  the  execution  of  the  judg- 
ment shall  not  be  stayed  by  the  appeal  until  the  instrument 
shall  have  been  executed  and  deposited  with  the  clerk  with 
whom  the  judgment  is  entered,  to  abide  the  judgment  of  the 
appellate  court. 

(3307.— Existing  suits — Security  where  jndgmeat  is  to  deliver  real   propertj 
or  for  a  sale  of  mortgaged  premises* 

If  the  judgment  appealed  from  direct  the  sale  or  delivery 
of  possession  of  real  property,  the  execution  of  the  same  shall 
not  be  stayed,  unless  a  written  undertaking  be  executed  on 
the  part  of  the  appellant,  with  two  sureties,  to  the  effect  tl  at, 
during  the  possession  of  such  property  by  the  appellant,  he 
will  not  commit,  or  suffer  to  be  comitted,  any  waste  thereon, 
and  that  if  the  judgment  be  affirmed,  he  will  pay  the  value 
of  the  use  and  occupation  of  the  property,  from  the  time  ot 
the  appeal  until  the  delivery  of  possession  thereof,  pursuant 
to  the  judgment,  not  exceeding  a  sum  to  be  fixed  by  a  Judge 
of  the  court  by  which  judgmet  was  rendered,  and  which 
shall  be  specified  in  the  undertaking.  When  the  judgment 
is  for  the  sale  of  mortgaged  premises,  and  the  payment  of  a 
deficiency  arising  upon  the  sale,  the  undertaking  shall  also 
provide  for  the  payment  of  such  deficiency. 

<)308. — Existing  suits— Stay  of  proceedings  nj>cu  scenritj  being  givea. 

Whenever  an  appeal  is  perfected  as  provided  by  sections 
three  hundred  andfour,  three  hundred  and  five,  three  hundred 
and  six,  and  three  hundred  and  seven,  it  stays  all  further 
proceedings  in  the  court  below  upon  the  judgment  appealed 
from,  or  upon  the  matter  embraced  therein;  but  the  court 
below  may  proceed  upon  any  other  matter  included  in  the 
actfon  and  not  affected  by  the  judgment  appealed  from.  And 
the  court  below  may,  in  its  discretion,  dispense  witli  or  limit 
the  security  required  by  sections  three  hundred  and  four 
three  hundred  and  five,  and  three  hundred  and  seven,  when  t  lie 


118  THE  CODE  OF 

appellant  is  an  executor,  administrator,  trustee,  or  other 
person  acting  in  another's  right;  and  may  also  limit  such 
security  to  an  amount  not  more  than  fifty  thousand  dollars,  in 
the  cases  mentioned  in  sections  three  hundred  and  five, 
three  hundred  and  six,  three  hundred  and  seven,  where  it 
would  otherwise,  according  to  those  sections,  exceed  that 
sum. 

gS$(MN— Existing  snits—  IndiM -takings  may  be  in  one  instrnment  or  several- 

The  undertakings  prescribed  by  sections  three  hundred 
and  four,  three  hundred  and  five,  three  hundred  and  six,  and 
three  hundred  and  seven,  may  bein  one  instrument  or  several, 
at  the  option  of  the  appellant;  and  a  copy,  including,  the 
names  and  residence  of  the  sureties,  must  be  served  on  the 
adverse  party,  with  the  notice  of  appeal,  unless  a  deposit  is 
made  as  provided  in  section  three  hundred  and  four,  and 
notice  thereof  given. 

V)310.— Existing  suits— Security  to  be  approved  and  to  justify. 

An  undertaking  upon  an  appeal  shall  be  of  no  effect, 
unless  it  be  accompanied  by  the  affidavit  of  the  sureties 
that  they  are  each  worth  double  the  amount  specified 
therein.  The  respondent  may,  however,  except  to  the  suffi- 
ciency of  the  sureties,  within  ten  clays  after  the  notice  of 
the  appeal;  and  unless  they  or  other  sureties  justify  before 
the  Judge  or  court  below,  or  as  prescribed  by  sections  one 
hundred  and  sixty-five  and  one  hundred  and  sixty-six,  within 
•  ten  days  thereafter,  the  appeal  shall  be  regarded  as  if  no 
undertaking  had  been  given.  The  justification  shall  be  upon 
a  notice  of  not  less  than  five  days. 

<)3 11.— Existing  suits— Perishable  property  may  be  sold  notwithstanding  appeal- 
In  the  cases  not  provided  for  in  sections  three  hundred,  and 
five,  three  hundred  and  six,  three  hundred  and  seven,  and 
three  hundred  and  eight,  the  perfecting  of  an  appeal,  by 
giving  the  undertaking  mentioned  in  section  three  hundred 
and  four,  shall  stay  proceedings  in  the  court  below  upon 
the  judgment  appealed  from,  except  that  where  it  directs 


CIVIL  PROCEDURE.  119 

the  sale  of  perishable  property,  the  court  below  may  order 
the  property  to  be  sold,  and  the  proceeds  thereof,  to  be 
deposited  or  invested,  to  abide  the  judgment  of  the  appellate 
court 

j312. — Existing  suits— Undertaking  must  be  filed. 

The  undertaking  must  be  filed  with  the  clerk  with  whom 
the  judgment  or  order  appealed  from  was  entered.  The 
provisions  of  this  chapter  as  to  the  security  to  be  giveu 
upon  appeals,  and  as  to  the  stay  of  proceedings,  shall  apply 
to  all  appeals  taken  to  the  Supreme  Court. 

^ 313. — Existing  suits — Intermediate  orders  affeeting  the  judgment  may   be 
reviewed  on  the  appeal. 

Upon  an  appeal  from  a  judgment,  the  court  may  review 
any  intermediate  order  involving  the  merits  and  necessarily 
affecting  the  judgment. 

$311.-— Existing  suits— Judgment  on  appeal— Restitution. 

Upon  an  appeal  from  a  judgment  or  order,  the  appellate 
court  may  reverse,  affirm  or  modify  the  judgment  or  order 
appealed  from,  in  the  respect  mentioned  in  the  notice  of 
appeal,  and  as  to  any  or  all  of  the  parties,  and  may,  if 
necesssary  or  proper,  order  a  new  trial.  When  the  judgment 
is  reversed  or  modified,  the  appellate  court  may  make  com- 
plete restitution  of  all  property  and  rights  lost  by  the  erro- 
neous judgment. 

The  foregoing  sections,  from  section  three  hundred  and 
four,  to  section  three  hundred  and  fourten,  both  inclusive 
shall  apply  to  existing  suits. 


120  THE  CODE  OF 

TITLE    XIY. 

OF  TEE    MISCELLANEOUS  PROCEEDINGS  IN  CIVIL    ACTIONS,  AND   GENERAL 

PROVISIONS. 

CHAPTER  I. 


SUBMITTING    A    CONTROVERSY    WITHOUT   ACTION. 

§215.— Controversy,  how  mi  limit  ted  without  action. 

Parties  to  a  question  in  difference,  which  might  be  the 
subject  of  a  civil  action,  may,  without  action,  agree  upon  a 
case  containing  the  facts  upon  which  the  controversy 
depends,  and  present  a  submission  of  the  same  to  any  court 
which  would  have  jurisdiction  if  an  action  had  been  brought. 
But  it  must  appear  by  affidavit  that  the  controversy  is  real, 
and  the  proceeding  in  good  faith,  to  determine  the  rights 
of  the  parties.  The  Judge  shall  thereupon  hear  and  deter- 
mine the  case,  and  render  judgment  thereon,  as  if  an  action 
were  depending. 

§316« — Judgment. 

Judgment  shall  be  entered  in  the  Judgment  Docket,  as  in 
other  cases,  but  without  costs  for  any  proceeding  prior  to 
trial.  The  case,  the  submission,  and  a  copy  of  the  judg- 
ment shall  constitute  the  judgment-roll.  The  costs  of  the 
trial  shall  be  five  dollars. 

§317. — Judgment,  how  enforced  or  appealed  from.  ^m^ 

The  judgment  may  be  enforced  in  the  same  monncr^^P^ 
it  had  been  rendered  in  an  action,  and  shall  be  subject  to 
appeal  in  like  manner. 


CIVIL  PROCEDURE.  121 


CHAPTER  II. 

PROCEEDINGS   AGAINST   JOINT     DEBTORS,    HEIRS,    DEVISEES,    LEGATEES, 
AND   TENANTS    HOLDING    UNDER   A    JUDGMENT    DEBTOR. 

<j:J18. — Parties  not  summoned  in  action  on  joint  contract,  may  be  summoned 
after  judgment. 

When  a  judgment  shall  be  recovered  against  one  or  more 
of  several  persons  jointly  indebted  upon  a  contract,  by  pro- 
ceeding as  provided  in  section  eighty-seven,  those  who  were 
not  originally  summoned  to  answer  the  complaint  may  be 
summoned  to  show  cause  why  they  should  not  be  bound  by 
the  judgment,  in  the  same  manner  as  if  they  had  been  origi- 
nally summoned. 

§311). — If  judgment  debtor  die,  his  representatives  may  be  summoned. 

In  case  of  the  death  of  the  judgment  debtor  after  judg- 
ment, the  heirs,  devisees,  or  legatees  of  the  judgment  debtor, 
or  the.  tenants  of  real  property  owned  by  him  and  affected 
by  the  judgment,  may,  after  the  expiration  of  three  years, 
from  the  time  of  granting  letters  testamentary  or  of  admin- 
istration upon  the  estate  of  the  testator  or  intestate,  be 
summoned  to  show  cause  why  the  judgment  should  not  be 
enforced  against  the  estate  of  the  judgment  debtor  in  their 
hands  respectively;  and  the  personal  representatives  of  a 
deceased  judgment  debtor  may  be  so  summoned  at  any  time 
within  one  year  after  their  appointment.  The  personal 
representative  of  a  deceased  judgment  debtor,  if  there  be 
any,  shall  always  be  parties  to  any  summons  against  his. 
heirs,  devisees,  legatees  or  tenants,  to  enforce  the  judgment. 

£320.— form  of  snmmons. 

The  summons  provided  in  the  last  section  shall  be  signed 
by  the  clerk  of  any  court  in  which  the  judgment  was  dock- 
eted before  the  death  of  the  debtor,  and  in  which  he  had 
property  affected  thereby,  but  shall  be  made  returnable  to 
the  court  in  which  the  judgment  was  recovered;  it  shall 


122  THE  CODE  OF 

describe  the  judgment,  and  require  the  person  summoned  to 
show  cause  within  twenty  days  after  the  service  of  the  sum- 
mons; and  shall  be  served  in  like  manner  as  the  original 
summons. 

£321. — To  be  accompanied  by  affidavit  of  amount  dne. 

The  summons  shall  be  accompanied  by  an  affidavit  of  the 
person  causing  it  to  issue,  that  the  judgment  has  not  been 
satisfied,  to  his  knowledge  or  information  and  belief,  and 
shall  specify  the  amount  due  thereon. 

§322. — Party  summoned  may  answer  and  defend. 

Upon  such  summons  any  party  summoned  may  answer 
within  the  time  specified  therein,  denying  the  judgment,  or 
setting  up  any  defence  thereto  which  may  have  arisen  sub- 
sequently to  such  judgment;  and  in  addition  thereto,  if  the 
party  be  proceeded  against  according  to  section  three  hun-. 
dred  and  eighteen,  he  may  make  any  defence  which  he  might 
have  made  to  the  action  if  the  summons  had  been  served  on 
him  at  the  time  when  the  same  was  originally  commenced 
and  such  defence  had  been  then  interposed  to  such  action. 

S323.— Subseqnent  pleadings  and  proceedings  same  as  in  action. 

The  party  issuing  the  summons  may  demur  or  reply  to 
the  answer,  and  the  party  summoned  may  demur  to  the 
reply;  and  the  issues  may  be  tried  and  judgment  may  be 
given  in  the  same  manner  as  in  an  action,  and  enforced  by 
execution,  or  the  application  of  the  property  charged  to  the 
payment  of  the  judgment  may  be  compelled  by  attachment, 
if  necessary. 

§324. — Answer  and  reply  to  be  verified  as  in  an  action. 

The  answer  and  reply  shall  be  verified  in  the  like  cases 
and  manner,  and  be  subject  to  the  same  rules,  as  the  answer 
and  reply  in  an  action. 


CIVIL  PROCEDURE.  123 

CHAPTER  III. 

CONFESSION  OF  JUDGMENT  WITHOUT  ACTION. 

§325j — Judgment  may  be  confessed  for  debt  dae  or  contingent  liability^ 

A  judgment  by  confession  may  be  entered,  without  action, 
either  in  «*r  out  of  term,  either  for  money  due  or  to  become 
due,  or  to  secure  any  person  against  contingent  liability  on 
behalf  of  the  defendant,  or  both,  in  the  manner  prescribed 
by  this  chapter. 

<;326.— Statement  in  writing  and  form  thereof. 

A  statement  in  writing  must  be  made,  signed  by  the 
defendant,  and  verified  by  his  oath,  to  the  following  effect: 

1.  It  must  state  the  amount  for  which  judgment  may  be 
entered,  and  authorize  the  entry  of  judgment  therefor. 

2.  It  it  be  for  money  due,  or  to  become  due,  it  must  state 
concisely  the  facts  out  ot  which  it  arose,  and  must  show 
that  the  sum  confessed  therefor,  is  justly  due,  or  to  become 
due. 

3.  If  it  be  for  the  purpose  of  securing  the  plaintiff  against 
a  contingent  liability,  it  must  state  concisely  the  facts  con- 
stituting the  liability,  and  must  show  that  the  sum  confessed 
therefor  does  not  exceed  the  same. 

g32T. — Jndgmcnt  and  exetntion. 

The  statement  may  be  filed  with  the  clerk  of  the  Superior 
Court  of  the  county  in  which  the  defendant  resides,  or  if 
he  does  not  reside  in  the  State,  of  some  county  in  which  he 
has  property.  The  clerk  shall  endorse  upon  it,  and  enter 
on  his  judgment  docket,  a  judgment  of  the  court,  for  the 
amount  confessed,  with  three  dollars  costs,  together  with 
disbursements.  The  statement  and  affidavit,  writh  the  judg- 
ment endorsed,  shall  thenceforth  become  the  judgment-roll. 
Executions  may  be  issued  and  enforced  thereon,  in  the  same 
manner  as  upon  judgments  in  other  cases  in  such  courts. 
When  the  debt  for  which  the  judgment  is  recovered,  .is  not 


124  THE  CODE  OE 

all  due,  or  is  payable  in  installments,  and  the  installments 
are  not  all  due,  the  execution  may  issue  upon  such  judg- 
ment for  the  collection  of  such  installments  as  have  become 
due,  and  shall  be  in  the  usual  form,  but  shall  have  endorsed 
thereon,  by  the  attorney  or  person  issuing  the  same,  a  direc- 
tion to  the  sheriff  to  collect  the  amount  due  on  such  judg- 
ment, with  interest  and  costs,  which  amount  shall  be  stated, 
with  interest  thereon,  and  the  costs  of  said  judgment  Not- 
withstanding the  issue  and  collection  of  such  execution, 
the  judgment  shall  remain  as  security  for  the  installments 
thereafter  to  become  due;  and  whenever  any  further  install- 
ments become  due  execution  may,  in  like  manner,  be  issued 
for  the  collection  and  enforcement  of  the  same. 


CHAPTER  IV. 

OFFER    OF     THE    DEFENDANT  TO  COMPROMISE  THE  WHOLE  OR  A  TART  OF 

THE  ACTION. 

£328.— Offer  of  compromise. 

The  defendant  may,  at  any  time  before  the  trial  or  verdict, 
serve  upon  the  plaintiff  an  offer  in  writing  to  allow  judg- 
ment to  be  taken  against  him  for  the  sum  or  property,  or  to 
the  effect  therein  specified,  with  costs.  If  the  plaintiff 
accept  the  offer,  and  give  notice  thereof  in  writing  within 
ten  days,  he  may  file  the  summons,  complaint,  and  offer, 
with  an  affidavit  of  notice  of  acceptance,  and  the  clerk  must 
thereupon  enter  judgment  accordingly.  If  the  notice  of 
acceptance  be  not  given,  the  offer  is  to  be  deemed  with- 
drawn, and  cannot  be  given  in  evidence;  and  if  the  plaintiff 
fail  to  obtain  a  more  favorable  judgment  he  cannot  recover 
costs,  but  must  pay  the  defendant's  costs  from  the  time  of 
the  offer;  and  in  case  the  defendant  shall  set  up  a  counter- 
claim in  his  answer  to  an  amount  greater  than  the  plaintiff's 
claim,  or  sufficient  to  reduce  the  plaintiff's  recovery  below 
fifty  dollars,  then  the  plaintiff  may  serve  upon  the  defendant 


CIVIL  PROCEDURE.  125 

an  offer  in  writing-,  to  allow  judgment  to  be  taken  against  him 
for  the  amount  specified,  or  to  allow  said  counter-claim  to 
the  amount  specified  with  costs.  If  the  defendant  accept 
the  offer,  and  give  notice  thereof  in  writing  within  ten  days, 
he  may  enter  judgment  as  above  for  the  amount  specified,  if 
the  offer  entitle  him  to  judgment,  or  the  amount  specified 
in  said  offer  shall  be  allowed  him  in  the  trial  of  the  action. 
If  the  notice  of  acceptance  be  not  given,  the  offer  is  to  be 
deemed  withdrawn,  and  cannot  be  given  in  evidence;  and 
if  the  defendant  fail  to  recover  a  more  favorable  judgment, 
or  to  establish  his  counter-claim  for  a  greater  amount  than 
is  specified  in  said  offer,  he  cannot  recover  costs,  but  must 
pay  the  plaintiff's  costs  from  the  time  of  the  offer. 

%il% — Defcudaut  may  offer  to  liquidate  damages  conditionally* 

In  an  action  arising  on  contract,  the  defendant  may,  with 
his  answer,  serve  upon  the  plaintiff  an  offer  in  writing,  that 
if  he  fail  in  his  defence,  the  damages  be  assessed  at  a  speci- 
fied sum;  and  if  the  plaintiff  signify  his  acceptance  thereof 
in  writing,  twenty  days  before  the  trial,  and  on  the  trial  have 
a  verdict,  the  damages  shall  be  assessed  accordingly. 

.^330.— Effect  of  acceptance  or  refusal  of  offer. 

If  the  plaintiff  do  not  accept  the  offer,  he  shall  prove  his 
damages,  as  if  it  had  not  been  made,  and  shall  not  be  per- 
mitted to  give  it  in  evidence.  And  if  the  damages  assessed 
in  his  favor  shall  not  exceed  the  sum  mentioned  in  the  offer, 
the  defendant  shall  recover  his  expenses  incurred  in  conse- 
quence of  any  necessary  preparation  or  defence  in  respect 
to  the  question  of  damages.  Such  expense  shall  be  ascer- 
tained at  the  trial. 


126  THE  CODE  OF 

CHAPTER  V. 

ADMISSION   OR   INSPECTION    OF    WRITINGS. 

§331. — Existing  suits.    Inspection  and  copy  of  books,  papers,  and  documents, 
Iiow  obtained. 

Either  party  may  exhibit  to  the  other,  or  to  his  attorney 
at  any  time  before  the  trial,  any  paper  material  to  the  action, 
and  request  an  admission  in  writing  of  its  genuineness.  If 
the  adverse  party,  or  his  attorney,  fail  to  give  the  admission, 
within  lour  days  after  the  request,  and  if  the  party  exhibit- 
ing the  paper  be  afterwards  put  to  expense  in  order  to  prove 
its  genuineness,  and  the  same  be  finally  proved  or  admitted 
on  the  trial,  such  expense  to  be  ascertained  at  t^ie  trial, 
shall  be  paid  by  the  party  refusing  the  admission,  unless  it 
appear  to  the  satisfaction  of  the  court  that  there  were  good 
reasons  for  the  refusal.  The  court  before  which  an  action 
is  pending,  or  a  Judge  thereof,  may,  in  their  discretion,  and 
upon  due  notice,  order  either ,  party  to  give  to  the  other, 
within  a  specified  time,  an  inspection  and  copy,  or  permis- 
sion to  take  a  copy,  of  any  books,  papers,  and  documents, 
in  his  possession  or  under  his  control,  containing  evidence 
relating  to  the  merits  of  the  action  or  the  defence  therein. 
If  compliance  with  the  order  be  refused,  the  court,  on  motion, 
may  exclude  the  paper  from  being  given  in  evidence,  or 
punish  the  party  refusing,  or  both.  This  section  shall  apply 
to  existing  suits. 


CHAPTER  VI. 


EXAMINATION    OF    PARTIES. 


sj332* — Aftion  lor  discovery  abolished. 

No  action  to  obtain  discovery  under  oath,  in  aid  of  the 
prosecution  or  defence  of  another  action,  shall  be  allowed, 


CIVIL  PROCEDURE.  127 

nor  shall  any  exomination  of  a  party  be  had,  on  behalf  of 
the  adverse  party,  except  in  the  manner  prescribed  by  this 
chapter. 

£333.— Existihg  suits— A  party  may  examine  his  adversary  as  a  witness. 

A  party  to  an  action  may  be  examined  as  a  witness,  at  the 
instance  of  the  adverse  party,  or  of  any  one  of  several  adverse 
parties,  and  for  that  purpose  may  be  compelled,  in  the  same 
manner,  and  subject  to  the  same  rules  of  examination,  as  any 
other  witness,  to  testify,  either  at  the  trial,  or  conditionally, 
or  upon  commission. 

§334. — Existing  suits— Such  examination  also  allowed  before  trial — Proceed- 
ings therefor. 

The  examination,  instead  of  being  had  at  the  trial,  as 
provided  in  the  last  section,  may  be  had  at  any  time  before 
the  trial,  at  the  option  of  the  party  claiming  it,  before  a 
Judge  or  clerk  of  the  court,  on  a  previous  notice  to  the 
party  to  be  examined,  and  any  other  adverse  party,  of  at 
least  five  days,  unless,  for  good  cause  shown,  the  Judge  order 
otherwise.  But  the  party  to  be  examined  shall  not  be  com- 
pelled to  attend  in  another  county  than  that  of  his  residence, 
or  where  he  may  be  served  with  a  summons  for  his 
attendance. 

£335. — Existing  suits — Party,  how  compelled  to  attend. 

The  party  to  be  examined,  as  in  the  last  section  provided, 
may  be  compelled  to  attend  in  the  same  manner  as  a  witness 
xvho  is  to  be  examined  conditionally ;  and  the  examination 
shall  be  taken  and  filed  by  the  Judge  or  clerk  in  like  manner, 
and  may  be  read  by  either  party  on  the  trial. 

£  336.— Existing  suits— Testimony  of  party  may  be  rebutted. 

The  examination  of  the  party  thus  taken,  may  be  rebutted 
by  adverse  testimony. 


129  THE  CODE  OF 

£337 — Existing  suits— Effect  of  refusal  to  testify. 

If  a  party  refuse  to  attend  and  testify,  as  in  the  last  four 
sections  provided,  he  may  be  punished  as  for  a  contempt,  and 
his  complaint,  answer,  or  reply  may  be  stricken  out. 

£33S.— Existing  suits— Testimony  by  a  party  not  responsive  to  the  inquiries, 
may  be  rebutted  by  the  oath  of  the  party  calling  him. 

A  party  examined  by  an  adverse  party,  as  in  this  chapter 
provided,  may  be  examined  on  his  own  behalf,  subject  to  the 
same  rules  of  examination  as  other  witnesses.  But  if  he 
testify  to  any  new  matter,  not  responsive  to  the  inquiries 
put  to  him  by  the  adverse  party,  or  necessary  to  explain  or 
qualify  his  answers  thereto,  or  discharge  when  his  answers 
would  charge  himself,  such  adverse  party  may  offer  himself 
as  a  witness  on  his  own  behalf  in  respect  to  such  new  matter, 
subject  to  the  same  rules  of  examination  as  other  witnesses, 
and  shall  be  so  received. 

£339.— Existing  suits — Persons  for  whom  action  is  bronght  or  defended   may 
be  examined. 

A  person  for  whose  immediate  benefit  the  action  is  pros- 
ecuted or  defended,  though  not  a  party  to  the  action,  may 
be  examined  as  a  witness,  in  the  same  manner,  and  subject 
to  the  same  rules  of  examination,  as  if  he  were  named  as  a 
party. 

<J)310. — Existing  suits — Examination  of  co-plaintiff  or  co-defendant. 

A  party  may  be  examined  on  behalf  of  his  co-plaintiff  or 
of  a  co-defendant  as  to  any  matter  in  which  he  is  not  jointly 
interested  or  liable  with  such  co-plaintiff  or  co-defendant, 
and  as  to  which  a  separate  and  not  joint  verdict  or  judgment 
can  be  rendered.  And  he  may  be  compelled  to  attend  in 
the  same  manner  as  at  the  instance  of  an  adverse  party; 
but  the  examination  thus  taken  shall  not  be  used  in  the 
behalf  of  the  party  examined.  And  whenever,  in  the  case 
mentioned  in  sections  three  hundred  and  ninety  and  three 
hundred  and  ninety-one,  one  of  several  plaintiffs  or  defen- 
dants who  are  joint  contractors;  or  are  united  in  interest,  is 


CIVIL  PROCEDURE.  129 

examined  by  the  adverse  party,  the  other  of  such,  plaintiffs 
or  defendants  may  oifer  himself  as  a  witness  to  the  same 
cause  of  action  or  defence,  and  shall  be  so  received. 

1)311. — Hnsband  and  wife,  witnesses. 

In  any  trial  or  inquiry  in  any  suit,  action  or  proceeding  in 
any  court,  or  before  any  person  having,  by  law  or  consent 
of  parties,  authority  to  examine  witnesses  or  hear  evidence, 
the  husband  or  wife  of  any.  party  thereto,  or  of  any  person 
in  whose  behalf  any  such  suit,  action  or  proceeding  is 
brought,  prosecuted,  opposed  or  defended,  shall,  except  as 
hereinafter  stated,  be  competent  and  compellable  to  give 
evidence,  the  same  as  any  other  witness,  on  behalf  of  any 
party  to  such  suit,  action  or  proceeding.  Nothing  herein 
contained  shall  render  any  husband  or  wife  competent  or 
compellable  to  give  evidence  for  or  against  the  other,  in  any 
criminal  action  or  proceeding  (except  to  prove  the  fact  of 
marriage  in  case  of  bigamy,)  or  in  any  action  or  proceeding 
in  consequence  of  adultery,  or  in  any  action  or  proceeding 
for  divorce  on  account  of  adultery  (except  to  prove  the  fact 
of  marriage,)  or  in  any  action  or  proceeding  for  or  on  account 
of  criminal  conversation.  No  husband  or  wife  shall  be  com- 
pellable to  disclose  any  confidential  communication  made  by 
one  to  the  other  during  their  marriage.  The  several  sections 
of  this  chapter  shall  apply  to  existing  suits. 


CHAPTER  VII. 

EXAMINATION    OF    WITNESSES. 

§312.— Existing  snits— Interest  not  to  exclude  a  witness. 

No  person'offered  as  a  witness  shall  be  excluded  by  reason 
of  his  interest  in  the  event  of  the  action. 

§34Si — Existing  suits— Parties  to  actions  and  special  proceedings  may  be  ex- 
amined as  witnesses  on  their  own  behalf,  except  in  certain  cases. 

A  party  to  an  action  or  special  proceeding  in  any  and  all 

courts  and  before  any  and  all  officers  and  persons  acting 
9 


130  THE  CODE  OF 

judicially,  may  be  examined  as  a  witness  on  his  own  behalf, 
or  in  behalf  of  any  other  party,  conditionally,  on  commission 
and  upon  the  trial  or  hearing  in  the  case,  in  the  same 
manner  and  subject  to  the  same  rules  of  examination  as  any 
other  witness;  provided,  however,  that  no  party  to  the  action 
or  proceeding,  nor  any  person  who  has  a  legal  or  equitable 
interest  which  may  be  affected  by  the  event  of  the  action  or 
proceeding,  nor  any  person  who,  previous  to  such  examina- 
tion, has  had  such  an  interest,  -however  the  same  may  have 
been  transferred  to  or  come  to  the  party  to  the  action  or 
proceeding,  nor  any  assignor  of  anything  in  controversy  in 
the  action,  shall  be  examined  in  regard  to  any  transaction 
or  communication  between  such  witness  and  a  person  at  the 
time  of  such  examination  deceased,  insane  or  lunatic,  as  a 
wutness  against  a  party  then  prosecuting  or  defending  the 
action  as  executor,  administrator,  heir-at-law,  next-of-kin 
assignee,  legatee,  devisee,  or  survivor  of  such  deceased 
person,  or  as  assignee  or  committee  of  such  insane  person  or 
lunatic,  when  such  examination  or  any  judgment  or  deter- 
mination in  such  action  or  proceeding,  can  in  any  manner 
affect  the  interest  of  such  witness  or  the  interest  previously 
owned  or  represented  by  him.  But  wdien  such  executor, 
administrator,  heir-at-law,  next-of-kin,  assignee,  legatee, 
devisee,  survivor  or  committee,  shall  be  examined  on  his  own 
behalf  in  regard  to  such  transaction  or  communication  or 
the  testimony  of  such  deceased  or  insane  person  or  lunatic 
in  regard  to  such  transaction  or  communication  (however 
the  same  may  have  been  perpetuated  or  made  competent,) 
shall  be  given  in  evidence  on  the  trial  or  hearing  on  behalf 
of  such  executor,  administrator,  heir-at-law,  next-ol-kin, 
assignee,  legatee,  devisee,  survivor  or  committee,  then  all 
other  persons  not  otherwise  rendered  incomptent  shall  be 
made  competent  witnesses  in  relation  to  such  transaction  or 
communication  on  said  trial  or  hearing.  The  sections  of 
this  chapter  shall  apply  to  existing  suits. 


CIVIL  PROCEDURE.  131 

CHAPTER  VIII. 

MOTIONS    AND    ORDERS. 

§314*— Definition  of  an  order. 

Every  direction  of  a  court  or  Judge,  made  or  entered  in 
writing,  and  not  included  in  a  judgment,  is  denominated  an 
order. 

§845. — Definition  of  h  motion.    Motions  how  and  where  made.    Stay  of  pro- 
ceedings.   Coinpei^ug  parties  to  testify.    Decision  on  motion* 

1.  An  application  for  an  order  is  a  motion. 

2.  Motions  may  be  made  to  the  Clerk  of  a  Superior  Court, 
or  to  a  Judge  out  of  court,  except  for  a  new  trial  on  the 
merits. 

3.  Motions  must  be  made  within  the  district  in  which  the' 
action  is  triable. 

4.  A  motion  to  vacate  or  modify  a  provisional  remedy, 
and  an  appeal  from  an  order  allowing  a  provisional  remedy, 
shall  have  preference  over  all  other  motions. 

5.  No  order  to  stay  proceedings  for  a  longer  time  than 
twenty  days  shall  be  granted  by  a  Judge  out  of  court,  except 
upon  previous  notice  to  the  adverse  party. 

6.  When  any  party  intends  to  make  or  oppose  a  motion 
in  any  court  of  record,  and  it  shall  be  necessary  for  him  to 
have  the  affidavit  of  any  person  who  shall  have  refused  to 
make  the  same,  such  court  may,  by  order,  appoint  a  referee 
to  take  the  affidavit  or  deposition  of  such  person.  Such 
person  may  be  subpoenaed  and  compelled  to  attend  and 
make  an  affidavit  before  such  referee,  the  same  as  before  a 
referee  to  whom  it  is  referred  to  try  an  issue.  And  the  fees 
of  such  referee  for  such  service  shall  be  three  dollars  per 
day. 

7.  Whenever  a  motion  shall  be  made  in  any  cause  or  pro- 
ceeding in  any  of  the  courts  of  this  State,  to  obtain  an 
injunction  order,  order  of  arrest,  or  warrant  of  attachment, 
granted  in  any  such  case  or  proceeding,  it  shall  be  the  duty 


132  THE  CODE  OF 

of  the  Judge  before  whom  such  action  motion  is  made,  to- 
render  and  make  known  his  decision  on  such  motion  within 
ten  days  after  the  day  upon  which  such  motion  shall  or  may 
be  submitted  to  him  for  decision. 

§346. — Notice  on  motion. 

When  a  notice  of  a  motion  is  necessary,  it  must  be  served 
eight  days  before  the  time  appointed  for  the  hearing;  but 
the  court  or  Judge  may,  by  an  order  to  show  cause,  prescribe 
a  shorter  time. 


CHAPTER  IX. 


ENTITLING    AFFIDAVITS. 


()'H7. — FAistiug  suits.    Affidavits  defectively  entitled,  valid. 

It  shall  not  be  necessary,  to  entitle  an  affidavit  in  the 
action,  but  an  affidavit  made  without  a  title,  or  with  a  defec- 
tive title,  shall  be  as  valid  and  effectual,  for  every  purpose, 
as  if  it  were  duly  entitled,  if  it  intelligibly  refer  to  the  action 
or  proceeding  in  which  it  is  made. 


CHAPTER  X. 


COMPUTATION    OF    TIME. 


§348. — Time,  how  computed. 

The  time  within  which  an  act  is  to  be  done,  as  herein 
provided,  shall  be  computed  by  excluding  the  first  day,  and 
including  the  last.  It  the  last  day  be  Sunday,  it  shall  be 
excluded. 


CIVIL  PROCEDURE.  133 

CHAPTER  XI. 

NOTICES  AND  FILING  AND  SERVICE,  OF  PAPERS. 

§:$49.— Existing  suits— Notices,  &c,  how  served—  Subpoenas  for  witnesses. 

Notices  shall  be  in  writing ;  notices  and  other  papers  may 
be  served  on  the  party  or  his  attorney  personally,  or  in  the 
manner  prescribed  in  section  eighty,  where  not  otherwise 
provided  in  this  act. 

1.  If  upon  an  attorney,  service  may  be  made  during  his 
absence  from  his  office,  by  leaving  the  paper  with  his  clerk 
therein,  or  with  a  person  having  charge  thereof;  or,  when 
there  is  no  person  in  the  office,  by  leaving  it,  between  the 
hours  of  six  in  the  morning  and  nine  in  the  eveuing,  in  a 
conspicuous  place  in  the  office ;  or,  if  it  be  not  open  so  as  to 
admit  of  such  service,  then  by  leaving  it  at  the  attorney's 
residence,  with  some  person  of  suitable  age  and  discretion. 

2.  If  upon  a  party,  it  may  be  made  by  leaving  the  paper 
at  his  residence,  between  the  hours  of  six  in  the  morning 
and  nine  in  the  evening,  with  some  person  of  suitable  age 
and  discretion. 

3.  Service  of  a  subpoena  for  witnesses  may  be  made  by  a 
sheriff,  coroner  or  constable,  and  proved  by  the  return  of 
such  officer;  or  the  service  may  be  made  by  any  person  not 
a  party  to  the  action,  and  proved  by  his  oath. 

A  subpoena  for  witnesses  need  not  be  signed  by  the  clerk 
of  the  court,  it  shall  be  sufficient  if  subscribed  by  the  party 
or  his  attorney. 

§350.— Existing  suits — Service  by  mail. 

Service  by  mail  may  be  made  where  the  person  making 
the  service  and  the  person  on  whom  it  is  to  be  made  reside 
in  -different  places,  between  which  there  is  regular  com- 
munication by  mail.  But  service  by  mail  shall  not  be  good 
on  an}-  party  living  more  than  one  mile  from  the  post  office 
to  which  it  is  addressed. 


134  THE  CODE  OF 

§351.— Existing  suits—  Service  by  mail. 

In  case  of  service  by  "mail,  the  paper  must  be  deposited  in 
the  post  office,  addressed  to  the  person  on  whom  it  is  to  be 
served,  at  his  place  of  residence,  and  the  postage  paid. 

V)352. — Existing  suits — Double  time  when  served  by  mail. 

Where  the  service  is  by  mail,  it  shall  be  double  the  time 
required  for  a  letter  to  reach  the  party  to  whom  it  is  addressed 
by  ihe  ordinary  usage  of  the  mail. 

§353.— Existing  suits— When  this  chapter  does  not  apply. 

The  provisions  of  this  chapter  shall  not  apply  to  the 
service  of  a  summons,  or  other  process,  or  of  any  paper  to 
bring  a  party  into  contempt.  The  several  sections  of  this 
chapter  shall  apply  to  existing  suits. 


CHAPTER  XII. 

DUTIES  OF  SHERIFFS  AND  CORONERS. 

$354.— Duty  of  sheriff  and  coroner  in  serving  or  execnting  process,  and  how 
enforced— may  return  process  by  mail. 

Whenever,  pursuant  to  this  act,  the  sheriff  may  be  required 
to  serve  or  execute  any  summons,  order  or  judgment,  or  to 
do  any  other  act,  he  shall  be  bound  to  do  so  in  like  manner 
as  upon  process  issued  to  him,  and  shall  be  equally  liable  in 
all  respects  for  neglect  of  duty;  and  if  the  sheriff  be  a  party. 
the  coroner  shall  be  bound  to  perform  the  service,  as  he  is 
now  bound  to  execute  process  where  the  sheriff  is  a  party ; 
and  all  the  provisions  of  this  act  relating  to  sheriffs  shall 
apply  to  coroners  when  the  sheriff  is  a  party.  Sheriffs  and 
coroners  may  return  process  by  mail.  Their  liabilities  in 
respect  to  the  execution  of  process  shall  be  as  now  prescribed 
by  law. 


CIVIL  PROCEDURE.  135 

CHAPTER  X-III. 

ACCOUNTABILITY    OF    GUARDIANS. 

§355.— Guardian  not  to  receive  property  nntil  security  giveu. 

Xo  guardian  appointed  for  an  infant  shall  be  permitted 
to  receive  property  of  the  infant,  until  he  shall  have  given 
sufficient  security,  approved  by  a  Judge,  or  the  court  to 
account  for  and  apply  the  same  under  the  direction  of  the 
court. ' 


CHAPTER  XIV. 


TOWERS    OF    REFEREES. 


£356. — Powers  of  referees. 

Every  referee  appointed  pursuant  to  this  act  shall  have 
power  to  administer  paths  in  any  proceeding  beiore  him, 
and  shall  have  generally  the  powers  now  vested  in  a  referee 
by  law. 


CHAPTER  XV. 


HISC  ELLANEOUS    PROVISIONS. 


£357.— Papers  lost  or  withheld,  how  supplied. 

If  an  original  pleading  or  paper  be  lost  or  withheld  by 
any  person,  the  court  may  authorize  a  copy  thereof  to  be 
filed  and  used  instead  of  the  original. 

£358. — Where  undertakings  to  be  filed. 

The  various  undertakings  required  to  be  given  by  this 
Act  must  be  filed  with  the  clerk  of  the  court,  unless  the 


136  THE  CODE  OF 

court  expressly  provides  for  a  different  disposition  thereof, 
except  that  the  undertakings  provided  for  by  the  chapter 
on  the  claim  and  delivery  of  personal  property,  shall,  after 
the  justification  of  the  sureties,  be  delivered  by  the  sheriff 
to  the  parties  respectively,  for  whose  benefit  they  are  taken. 

^$59.— Time  for  publication  of  notices,  how  computed. 

The  time  for  publication  of  legal  notices  shall  be  compu- 
puted  so  as  to  exclude  the  first  day  of  publication  and  include 
the  day  on  which  the  act  or  event,  of  which  notice  is  given, 
is  to  happen,  or  which  completes  the  full  period  required  Re- 
publication. 

.£360. — Laws  of  other  States  and  governments,  how  proved. 

Printed  copies  in  volumes  of  statutes,  code,  or  other  writ- 
ten law,  enacted  by  any  other  State  or  territory,  or  foreign 
government,  purporting  or  proved  to  have  been  published 
by  the  authority  thereof,  or  proved  to  be  commonly  admit- 
ted as  evidence  of  the  existing  law  in  the  courts  and  judi- 
cial tribunals  of  such  State,  Territory,  or  government,  shall 
he  admitted  by  the  courts  and  officers  of  this  State,  on  all 
occasions,  as  presumptive  evidence  of  such  laws.  The 
unwritten  or  common  law  of  any  State  or  Territory,  or  for- 
eign government,  may  be  proved  as  facts  by  parol  evidence; 
and  the  books  of  reports  ot  cases  adjudged  in  their  courts, 
may  also  be  admitted  as  presumptive  evidence  of  such  law. 


CIVIL  PROCEDURE.  137 

TITLE    XV. 

ACTIONS  IN  PARTICULAR  CASES. 

Chapter  I.      Actions  against  foreign  corporations. 

«      H.    Actions  in  place  of  scire  facias,  quo  warranto,  and  of  in  formations 

in  the  natnre  of  a  qno  warranto. 
"      III.  Actions  for  the  partition  of  real  property. 
*'      IV.   Actions  to  determine  claims,  for  waste  and  nuisance. 
<»      V.     General  provisions  relating  to  actions  concerning  real  property. 

CHAPTER  I. 

ACTIONS    FOR    FOREIGN    CORPORATIONS. 

3361.— Where  and  by  whom  brought- 

An  action  against  a  corporation  created  by,  or  under  the 
laws  of  any  other  State,  government,  or  country,  may  be 
brought  in  the  Superior  Court  of  any  county  in  which  the 
cause  of  action  arose,  or  in  which  it  usually  did  business,  or 
in  which  it  has  property,  in  the  following  cases: 

1.  By  a  resident  of  this  State,  for  any  cause  of  action. 

2.  By  a  plaintiff,  not  a  resident  of  this  State,  when  the 
cause  of  action  shall  have  risen,  or  the  subject  of  the  action 
shall  be  situated,  within  this  State. 


CHAPTER  II. 

.ACTIONS    IN    PLACE    OF    SCIRE    FACIAS,  QUO    WARRANTO,  AND    OF  INFOR- 
MATIONS IN  THE  NATURE  OF  QUO  WARRANTO. 

$302.— Scire  facias  and  quo  warranto  abolished,  and  this  chapter  substituted. 

The  writ  of  scire  facias,  the  writ  of  quo  warranto,  and 
proceedings  by  information  in  the  nature  of  quo  ivarrcmtc, 
are  abolished;  and  the  remedies  heretofore  obtainable  in 


138  •        THE  CODE  OF 

those  forms  may  be  obtained  by  civil  actions  under  the  pro- 
visions of  this  chapter.  [But  any  proceedings  heretofore 
commenced,  or  judgment  rendered,  or  right  acquired,  shall 
not  be  affected  by  such  abolition. 

§363 — Action  may  be   bicnght  by  ■  Attoiney-Cuieial  to  vacate  a  charter,  by 
direction  of  the  Legislature. 

An  action  may  be  brought  by  the  Attorney-General,  in  the 
name  of  the  State,  whenever  the  Legislature  shall  so  direct, 
against  a  corporation,  for  the  purpose  of  vacating  or  annull- 
ing the  act  of  incorporation,  or  an  act  renewing  its  corporate 
existence,  on  the  ground  that  such  act  or  renewal  was  pro- 
cured upon  some  fraudulent  suggestion  or  concealment  of  a 
material  fact,  by  the  person  incorporated,  or  by  some  of 
them,  or  with  their  knowledge  and  consent, 

<)'i&i. — Action  to  annul   a   corporation,  when    and  how  brought  by'  Attorney- 
Ceneral,  by  leave  of  Supreme  Court. 

An  action  may  be  brought  by  the  Attorney-General,  in  the 
name  of  the  State,  on  leave  granted  by  the  Supreme  Court 
or  a  Judge  thereof,  for  the  purpose  of  vacating  the  charter 
or  annulling  the  existence  oi  a  corporation,  other  than  muni- 
cipal, whenever  such  corporation  shall — 

1.  Offend  against  any  of  the  provisions  of  the  act  or  acts- 
creating,  altering,  or  renewing  such  corporation;  or, 

2.  Violate  the  provisions  of  any  law  by  which  such  cor- 
poration shall  have  forfeited  its  charter  by  abuse  of  its  pow- 
ers; or, 

3.  Whenever  it  shall  have  forfeited  its  privileges  or  fran- 
chises by  failure  to  exercise  its  powers;  or, 

4.  Whenever  it  shall  have  done  or  omitted  any  act  which 
amounts  to  a  surrender  of  its  corporate  rights,  privileges  and 
franchises;  or, 

5.  Whenever  it  shall  exercise  a  franchi.se  or  privilege  not 
conferred  upon  it  by  law. 


CIVIL  PROCEDURE.  13J> 

And  it  shall  be  the  duty  of  the  Attorney-General,  when- 
ever he  shall  have  reason  to  believe  that  any  of  these  acts 
or  omissions  can  be  established  by  proof,  to  apply  for  leave, 
and  upon  leave  granted  to  bring  the  action,  in  every  case 
of  public  interest,  and  also  in  every  other  ease  in  which  sat- 
isfactory security  shall  be  given  to  indemnify  the  State 
against  the  costs  and  expenses  to  be  incurred  there!  >y. 

§365.— Leave  how  obtained. 

Leave  to  -bring  the  action  may  be  granted  upon  the  appli- 
cation of  the  Attorney-General;  and  the  court  or  Judge 
may  at  discretion,  direct  notice  of  such  application  to  be 
given  to  the  corporation  or  its  officers,  previous  to  granting 
such  leave,  and  may  hear  the  corporation  in  opposition 
thereto. 

§366. — Action  upon  information  or  complaint,  of  eonrsc. 

An  action  may  be  brought  by  the  Attorney-General  in  the 
name  of  the  people  of  this  State,  upon  his  own  information, 
or  upon  the  complaint  of  any  private  party,  against  the 
parties  offending  in  the  following  cases : 

1.  When  any  person  shall  usurp,  intrude  into,  or  unlaw- 
fully hold  or  exercise  any  public  office,  civil  or  military,  or 
any  franchise  within  this  State,  or  any  office  in  a  corporation 
created  by  the  authority  of  this  State,  or, 

2.  When  any  public  officer,  civil  or  military,  shall  have 
done  or  suffered  an  act  which,  by  the  provisions  of  law, 
shall  make  a  forfeiture  of  his  office;  or 

3.  When  any  association  or  number  of  persons  shall  act 
within  this  State  as  a  corporation,  without  being  duly  incor- 
porated. 

§367. — Action  when  and  how  brought  to  vacate  letters  patent. 

An  action  may  be  brought  by  the  Attorney-General,  in 
the  name  of  the  State,  for  the  purpose  of  vacating  or  annull- 
ing letters  patent  granted  by  the  State,  in  the  following 
cases : 


140  THE   CODE  OF 

1.  When  he  shall  have  reason  to  believe  that  such  letters 
patent  were  obtained  by  means  of  some  fraudulent  sugges- 
tion or  concealment  of  a  material  fact,  made  by  the  person 
to  whom  the  same  were  issued  or  made,  or  with  his  consent 
or  knowledge;  or 

2.  When  he  shall  have  reason  to  believe  that  such  letters 
patent  were -issued  through  mistake,  or  in  ignorance  of  a 
material  fact;  or 

3.  When  he  shall  have  reason  to  believe  that  the  patentee, 
or  those  claiming  under  him,  have  done  or  omitted  an  act, 
in  violation  of  the  terms  and  conditions  on  which  the  letters 
patent  were  granted,  or  have  by  any  other  means  forfeited 
the  interest  acquired  under  the  same. 

£3»i8.— Relator,  when  to  be  joined  as  plaintiff. 

When  an  action  shall  be  brought  by  the  Attorney-General, 
by  virtue  of  this  chapter,  on  the  relation  or  information  of  a 
person  having  an  interest  in  the  question,  the  name  of  such 
person  shall  be  joined  with  the  State  as  plaintiff,  and  in 
every  such  case  the  Attorney-General  may  require  as  a  con- 
dition for  bringing  such  action,  that  satisfactory  security 
shall  be  given  to  indemnify  the  State  against  the  costs  and 
expenses  to  be  incurred  thereby;  and  in  every  case  where 
such  security  is  given,  the  measure  of  the  compensation  to 
be  paid  by  such  person  or  persons  to  the  Attorney-General, 
shall  be  left  to  the  agreement  of  the  parties  express  or 
implied. 

<j360. — Complaint,  and  arrest  of  defendant,  in  action  for  nsurping  an  office. 

Whenever  such  action  shall  be  brought  against  a  person 
for  usurping  an  office,  the  Attorney-General,  in  addition  to 
the  statement  ot  the  cause  of  action,  may  also  set  forth  in 
the  complaint  the  name  of  the  person  rightfully  entitled  to 
the  office,  with  a  statement  of  his  right  thereto ;  and  in  such 
case,  upon  proof  by  affidavit  that  the  defendant  has  received 
fees  or  emoluments  belonging  to  the  office,  and  by  means  of 
his  usurpation  thereof,  an  order  may  be  granted  by  a  Judge 
of  the  Supreme  Court  for  the  arrest  of  such  defendant,  and 


CIVIL  PROCEDURE.  141 

holding  him  to  bail ;  and  thereupon  he  shall  be  arrested  and 
held  to  bail,  in  the  manner,  and  with  the  same  effect,  and 
subject  to  the  same  rights  and  liabilities,  as  in  other  civil 
actions  where  the  defendant  is  subject  to  arrest. 

§370. — Judgment  in  such  actions. 

In  every  such  case,  judgment  shall  be  rendered  upon  the 
right  of  the  defendant,  and  also  upon  the  right  of  the  party 
so  alleged  to  be  entitled,  or  only  upon  the  right  of  the  defen- 
dant, as  justice  shall  require. 

§371.— Assumption  of  office,  &c,  by  relator,  when  judgment  is  in  his  favor. 

If  the  judgment  be  rendered  upon  the  right  of  the  person 
so  alleged  to  be  entitled,  and  the  same  be  in  favor  of  such 
person,  he  shall  be  entitled,  after  taking  the  oath  of  office, 
and  executing  such  official  bond,  as  may  be  required  by  law, 
to  take  upon  himself  the  execution  of  the  office;  and  it  shall 
be  his  duty,  immediately  thereafter,  to  demand  of  the  defen- 
dant in  the  action  all  the  books  and  papers  in  his  custody, 
or  within  his  power,  belonging  to  the  office  from  which  he 
shall  have  been  excluded. 

$372.— Proceedings  against  defendant,  on  refusal  to  deliver  books  or  papers. 

If  the  defendant  shall  refuse  or  neglect  to  deliver  over 
such  books  or  papers,  pursuant  to  the  demand,  lie  shall  be 
deemed  guilty  of  a  misdemeanor,  and  the  same  proceedings 
shall  be  had,  and  with  the  same  effect,  to  compel  delivery 
of  such  books  and  papers,  as  are  prescribed  by  law. 

£373.— Damages,  how  recovered. 

If  judgment  be  rendered,  upon  the  right  of  the  person  so 
alleged  to  be  entitled,  in  favor  of  such  person,  he  may 
recover,  by  action,  the  damages  which,  he  shall  have  sus- 
tained by  reason  of  the  usurpation  by  the  defendant  of  the 
office  from  which  such  defendant  has  been  excluded. 


142  THE  CODE  OF 

§374.— One  action  against  several  persons  claiming  office  or  franchise. 

Where  several  persons  claim  to  be  entitled  to  the  same 
office  or  franchise,  one  action  may  be  brought  against  all 
such  persons,  in  order  to  try  their  respective  rights  to  such 
office  or  franchise. 

§375.— Penalty  for  nsnrping  office  or  franchise,  how  awarded. 

When  a  defendant,  whether  a  natural  person  or  a  corpo- 
ration, against  whom  such  action  shall  have  been  brought, 
shall  be  judged  guilty  of  usurping  or  intruding  into,  or 
unlawfully  holding  or  exercising  any  office,  franchise,  or 
privilege,  judgment  shall  be  rendered  that  such  defendant 
be  excluded  from  such  office,  franchise,  or  privilege,  and 
also  that  the  plaintiff  recover  costs  against  such  defendant. 
The  court  may  also,  in  its  discretion,  fine  such  defendant  a 
sum  not  exceeding  two  thousand  dollars,  which  fine,  when 
collected,  shall  be  paid  into  the  treasury  of  the  State. 

§376.— Judgment  of  forfeiture  against  a  corporation. 

If  it  shall  be  adjudged  that  a  corporation  against  which 
an  action  shall  have  been  brought  pursuant  to  this  chapter, 
has,  by  neglect,  abuse,  or  surrender,  forfeited  its  corporate 
rights,  privileges,  and  franchises,  judment  shall  be  ren- 
dered that  the  corporation  be  excluded  from  such  corporate 
rights,  privileges,  and  franchises,  and  that  the  corporation 
be  dissolved. 

§377.— Costs  against  corporation,  or  persons  claiming  to  be  such,  how  collected. 
If  judgment  be  rendered  in  such  action  against  a  corpo- 
ration, or  against  persons  claiming  to  be  a  corporation,  the 
court  may  cause  the  costs  therein  to  be  collected  by  execu- 
tion against  tha  persons  claiming  to  be  a  corporation,  or  by 
attachment  or  process  against  the  directors  or  other  officers 
of  such  corporation. 

§378. — Restraining  corporation,  and  appointment  of  receiver. 

When  such  judgment  shall  be  rendered  against  a  corpo- 
ration, the  -court  shall  have  the  power  to  restrain  the  cor- 


CIVIL  PROCEDURE.  143 

poration,  to  appoint  a  receiver  of  its  property,'  and  to  take 
an  account,  and  make  a  distribution  thereof  among  its  cred- 
itors; and  it  shall  be  the  duty  of  the  Attorney-General, 
immediately  after  the  rendition  of  such  judgment,  to  insti- 
tute proceedings  for  that  purpose. 

<V*79. — Copy  of  judgment-roll  against  corporation,  where  to  be  filed. 

Upon  the  rendition  of  such  judgment  against  a  corpora- 
tion, or  for  the  vacating  or  annulling  of  letters  patent,  it 
shall  be  the  duty  of  the  Attorney  General  to  cause  a  copy  of 
the  judgment-roll  to  be  forthwith  filed  in  the  office  of  the 
Secretary  of  State. 

§380. — Entry  of  judgment  relating  to  letters  patent. 

Such  secretary  shall  thereupon,  if  the  record  relates  to 
letters  patent,  make  an  entry  in  the  records  of  the  commis- 
sioners of  the  land  office,  of  the  substance  and  effect  of  such 
judgment,  and  of  the  time  when  the  record  thereof  was 
docketed;  and  the  real  property  granted  by  such  letters 
patent  may  thereafter  be  disposed  of  by  such  commissioners 
in  the  same  manner  as  if  such  letters  patent  had  never  been 
issued. 

§381. — Actions  for  forfeiture  of  property  to  the  Stale. 

Whenever,  by  the  provisions  of  law,  any  property,  real  or 
personal,  shall  be  forfeited  to  the  State,  or  to  any  officer  for 
their  use,  an  action  for  the  recovery  of  such  property, 
alleging  the  grounds  of  the  forfeiture,  may  be  brought  by 
the  proper  officer,  in  any  Superior  Court  of  the  State. 


CHAPTER  III. 

ACTION  FOR  THE  PARTITION  OF  REAL  PROPERTY,  &C. 

§382*— Prur  felons  of  tlie  Revised  Code  applicable  to  actions  of  partition. 

The  provisions  of  the  Revised  Code  relating  to  the  parti- 
tion of  lands,  tenements,  and  hereditaments,  held  or  pos- 
sessed, by  joint  tenants  or  tenants  in  common,  for  the  recov- 


144  THE  CODE  OF 

ery  of  widow's  year  provisions,  of  dower,  for  the  recovery  of 
the  possession  of  real  property,  of  habeas  corpus  and  manda- 
mus, shall  apply  to  actions  for  such  purposes  brought  under 
this  act,  so  far  as  the  same  can  be  so  applied  to  the  sub- 
stance and  subject-matter  of  the  action,  without  regard  to> 
its  form. 


CHAPTER  IV. 


ACTIONS   FOR  WASTE  AND  NUISANCE. 


§383.— Actions  of  waste  abolished.    Waste  how  remediable. 

-  The  action  of  waste  is  abolished  ;  but  any  proceeding- 
heretofore  commenced,  or  judgment  rendered,  or  right 
acquired,  shall  not  be  affected  thereby.  Wrongs  heretofore 
remediable  by  action  of  waste,  are  subjects  of  action  as  other- 
wrongs,  in  which  action  there  may  be  judgment  for  dam- 
ages, for  feitureof  theestate,  of  the  party  offending,  and  evic- 
tion from  the  premises. 

$384.— Provisions  of  Revised  Code  applicable  to  action  for  naste  under  this  act. 

The  provisions  of  the  Revised  Code  relating  to  the  action, 
of  waste  shall  apply  to  an  action  for  waste  brought  under 
this  act,  without  regard  to  the  form  of  the  action,  so  far  as 
the  same  can  be  so  applied. 

§385. — Wlien  judgment  of  forfeiture  and  eviction  to  be  given. 

Judgment  of  forfeiture  and  eviction  shall  only  be  given  - 
in  favor  of  the  person  entitled  to  the  reversion,  against  the 
tenant  in  possession,  when  the  injury  to  the  estate  in  rever- 
sion shall  be  adjudged  in  the  action  to  be  equal  to  the  value 
of  the  tenant's  estate  or  unexpired  term,  or  to  have  been, 
done  in  malice. 


CIVIL  PROCEDURE.  145 

§386.— Writ  of  nuisance  abolished. 

The  writ  of  nuisance  is  abolished;  but  any  proceeding 
heretofore  commenced,  or  any  judgment  rendered,  or  right 
acquired,  shall  not  be  affected  thereby. 

§387.— Remedy  for  injuries  heretofore  remediable  by  writ  of  nuisance. 

Injuries  heretofore  remediable  by  writ  of  nuisance  are  sub- 
jects of  action,  as  other  injuries ;  and  in  such  action  there 
may  be  judgment  for  damages,  or  for  the  removal  of  the 
nuisance,  or  both. 


TITLE    XVI. 


GENERAL   PROVISIONS. 

§388.— Definition  of  "  real  property." 

The  words  "  real  property,"  as  used  in  this  act,  are  co-ex- 
tensive  with  lands,  tenements  and  hereditaments. 

§389. — Definition  of  "  personal  property." 

The  words  "personal  property,"  as  used  in  this  act, 
include  money,  goods,  chattels,  things  in  action,  and  evi- 
dences of  debt. 

§390.— Definition  of  "property." 

The  word  "  property,"  as  used  in  this  act,  includes  pro- 
perty real  and  personal. 

§391. — Rule  of  construction. 

The  rule  of  common  law,  that  statutes  in  derogation  of 
that  law  are  to  be  strictly  construed,  has  no  application  to 
this  act. 

70 


146  THE  CODE  OF 

§392.— Statutory  provisions  inconsistent  with  this  act  repealed. 

All  statutory  provisions  inconsistent  with  this  act  are 
repealed;  but  this  repeal  shall  not  revive  a  statute  or  law 
which  may  have  been  repealed  or  abolished  by  the  provisions 
hereby  repealed.  And  all  rights  of  action  given  or  secured 
by  existing  laws  may  be  prosecuted  in  the  manner  provided 
by  this  act.  If  a  case  shall  rise  in  which  an  action  for  the 
enforcement  or  protection  of  a  right,  or  the  redress  or  pre- 
vention of  a  wrong,  cannot  be  had  under  this  act,  the  prac- 
tice heretofore  in  use  may  be  adopted  so  far  as  may  be 
necessary  to  prevent  a  failure  of  justice. 

§393. — Rules  and  practice  inconsistent  with  this  act  abrogated. 

The  present  rules  and  practice  of  the  courts  in  civil  actions, 
inconsistent  with  this  act,  are  abrogated:  except  where 
otherwise  expressly  provided,  but  where  consistent  with 
this  act,  they  shall  continue  in  force,  subject  to  the  power  of 
the  respective  courts  to  relax,  modify,  or  alter  the  same. 

§391. — Judges  of  Supreme  Court  shall  make  rules  of  practice. 

The  Judges  of  the  Supreme  Court  of  the  State,  shall  make 
from  time  to  time,  rules  for  the  practice  of  that  Court,  and 
also  rules  for  the  practice  and  procedure  of  the  Superior 
Courts,  not  inconsistent  with  the  provisions  of  this  Act. 

£395. — Judges  of  the  Superior  Conrt  to  suggest  rules. 

Every  Judge  of  a  Superior  Court,  at  least  once  in  two 
years,  shall  send  to  the  Chief  Justice  of  the  Supreme  Court, 
any  suggestions  which  he  may  think  fit.  respecting  the 
practice  and  procedure  of  the  Courts,  and  respecting  any 
other  changes  in  the  law  which  may  seem  likely  to  be 
useful. 

§391.— If  Judge  of  a  Superior  Court  not  present,  Court  to  be  adjourned,  wheu. 

It  the  Judge  of  a  Superior  Court  shall  not  be  present  to 
hold  any  term  of  a  court,  at  the  time  fixed  therefor;  it  shall 
be  the  duty  of  the  sheriff,  to   adjourn  the  court  from   da}7  to 


CIVIL  PROCEDURE.  M 

Jay,  until  the  fourth  day  of  the  term  inclusive,  unless  he 
shall  be  sooner  informed  that  the  Judge,  trom  any  cause, 
cannot  hold  the  term;  if  by  sunset  on  the  fourth  day  the 
Judge  shall  not  appear  to  hold  the  term,  or  if  the  sheriff 
shall  be  sooner  advised  that  the  Judge  cannot  hold  the  term, 
it  shall  then  be  the  duty  of  the  sheriff  to  adjourn  the  court 
until  the  next  term. 

§:J97. — If  trial  for  felony  iu  progress  at  expiration  of  a  term,  term  to  be  pro- 
longed. 

In  case  the  term  of  a  court  shall  expire  while  a  trial  for 
felony,  or  for  any  offence  punishable  by  imprisonment  in  a 
penitentiary,  or  by  any  greater  punishment,  shall  be  in  pro- 
gress, and  before  judgment  shall  be  given  therein,  the  Judge 
shall  continue  the  term  as  Jong  as  in  his  opinion  it  shall  be 
necessary  for  the  purposes  of  the  case. 

<jS98.— Pleadings,  &<•.,— How  written. 

Every  process,  pleading,  report,  order,  judgment  and  other 
proceeding  required  to  be  in  writing,  and  all  copies  of 
records,  shall  be  written  on  paper  of  the  width  of  foolscap  or 
of  legal  cap;  a  margin  of  from  three-fourths  of  an  inch  to  an 
inch  wide,  shall  be  left  on  the  left-hand  side  of  each  page; 
if  the  sheet  be  written  on  both  sides,  it  shall  be  so  written] 
that  when  several  sheets  are  attached  at  their  tops,  they 
may  be  read  consecutively,  without  reversing  the  manu- 
script. 

</M9 — Judges  of  Superior  Conrfc  to  issae  writs  of  haiieas  corpns. 

Judges  of  the  Superior  Courts  shall  have  all  the  powers 
and  be  subject  to  all  the  duties  in  respect  to  issuing,  hearing, 
and  adjudicating  on,  writs  of  habeas  ccrpus,  as  weie  given 
or  imposed  by  law,  on  the  Judges  of  the  late  Superior 
Courts  of  law  of  this  State. 


148  THE  CODE  OF 

TITLE   XVII. 

REGULATIONS  RESPECTING  EXISTING  SUITS. 

gtOO. — Clerk  of  Superior  Court  to  transfer  existing  suits,  in  which  no  final 
judgment. 

The  Clerks  of  the  Superior  Courts,  at  the  request  of  a 
party  thereto,  within  six  months  from  the  ratification  of  this 
act,  and  on  the  payment  of  a  fee  of  one  dollar,  shall  enter 
on  a  separate  docket,  all  suits  which,  at  the  ratification 
aforesaid,  shall  have  been  commenced  and  in  which  final 
judgment  has  not  been  rendered  in  the  late  County  Courts, 
Superior  Courts  of  Law,  and  Courts  of  Equity  of  their  respec- 
tive counties. 

$101 — Snits  not  transferred  to  abate. 

And  every  suit  not  so  transferred  within  the  time  afore- 
said shall  be  abated,  and  the  Clerk  of  the  Superior  Court 
shall  tax  the  costs,  against  the  parties  liable,  and  collect  the 
same  by  the  proper  process. 

§402.— If  transferred,  how  proceeded  with. 

The  said  suits  shall  be  proceeded  in  and  tried,  under  the 
existing  laws  and  rules  applicable  thereto.  After  final  judg- 
ment shall  be  rendered  therein,  the  clerk  shall  enter  such 
judgment  on  the  execution  docket  required  to  be  kept  by 
him,  and  the  subsequent  proceedings  shall  be  as  provided 
for  actions  hereafter  to  be  commenced. 

(^.105.— Existing  jndgments  not  dormant  may  be  transferred. 

Existing  judgments  and  decrees  not  dormant,  may  in  like 
manner  be  entered  on  the  execution -docket,  and  the  subse- 
quent proceedings  shall  be  as  is  prescribed  for  actions  here- 
after to  be  commenced,  as  far  as  shall  be  compatible  with 
the  previous  proceedings;  and  no  lien  acquired  before  the 
ratification "aforesaid,  shall  be  lost  by  any  change  of  process, 
occasioned  by  this  act. 


CIVIL  PROCEDURE.  149 

§404. — Dormant  judgments,  how  revived. 

Judgments  or  decrees  which  are  dormant  at  the  ratifica- 
tion aforesaid,  may  be  revived  or  enforced  in  the  manner 
herein  provided. 

$405. — Actions  to  recover  debts  embraced  in  Stay-Law. 

In  all  actions,  hereafter  commenced,  founded  on  such  con- 
tracts as  are  provided  for  in  an  Ordinance  of  the  Convention 
of  this  State,  entitled,  "An  Ordinance  respecting  the  juris- 
diction of  the  Courts  of  the  State,"  ratified  on  the  fourteenth 
day  of  March,  1868,  the  summons  shall  be  made  returnable 
to  the  term  of  the  Superior  Court  therein  designated,  and 
the  subsequent  proceedings  shall  be  in  accordance  with  the 
provisions  of  said  act. 

$406.— Executions  levied  on  personal  property. 

The  late  sheriff  of  any  country  having  in  his  hands  any 
scire  facias  execution,  which  has  been  levied  on  personal 
property  of  the  defendants,,  which  is  unsold,  shall  proceed 
to  sell  the  same,  as  now  required  by  law;  he  shall  pay  over 
the  proceeds,  after  deducting  his  fees,  and  shall  also  make 
return  of  the  writ,  to  the  Clerk  of  the  Superior  Court  of  the 
county,  to  any  court  of  which  the  writ  is  returnable,  the 
proceeds  to  be  paid  by  the  clerk  to  the  parties  entitled 
thereto. 

§407.— Executions  satisfied. 

The  said  sheriff  shall  in  like  manner  return  all  executions 
in  their  hands  which  are  satisfied,  whether  by  a  sale  of 
property  or  otherwise,  and  shall  pay  over  any  proceeds 
thereof. 


150  THE  CODE  OF 

§408.—  Executions  not  levied  at  all,  or  levied  on  real  property. 

As  soon  as  the  successors  of  the  said  late  sheriff  shall 
have  qualified  and  given  bonds  as  required  by  law,  the  said 
late  sheriff  shall  deliver  to  said  successors,  all  writs  of 
execution  in  their  hands,  which  have  not  been  satisfied,  and 
have  not  been  levied  on  at  all,  or  which  have  been  levied  on 
property  which  has  been  sold  and  a  residue  remains  unsatis- 
fied, or  have  been  levied  on  real  property  which  in  whole  or 
in  part  remains  unsold,  with  a  return  stating  any  receipt  of 
money  by  them,  and  their  action  under  the  writ.  The  new 
sheriffs  shall  proceed  to  act  under  such  writ  as  if  the  same 
had  been  addressed  and  issued  to  them,  and  shall  make  return 
thereof  to  the  next  term  of  the  Superior  Court  of  the  county 
to  any  court  of  which  the  writ  was  returnable.  Any  new 
sheriff  failing  to  make  due  return  of  such  writs  delivered 
to  him  shall  forfeit  and  pay  one  hundred  dollars  to  any 
person  grieved  thereby,  to  be  recovered  on  motion  to  the 
court  before  which  the  writ  is  required  to  be  returned. 

All  proceeds  of  executions  in  .part  only  satisfied  while  in 
the  hands  of  any  late  sheriff,  shall  be  paid  by  him  to  the 
Clerk  of  the  Superior  Court  of  the  county  to  any  court  of 
which  the  writ  was  returnable  lor  the  use  of  the  parties 
entitled  thereto  under  the  penalties  now  provided  by  law  in 
case  of  failure. 


§409.— Execution  to  be  docketed. 

The  clerk  of  any  Superior  Court  to  which  any  execution 
shall  be  returned  as  is  above  prescribed,  shall  at  the  request 
of  any  person  interested  therein,  and  on  the  payment  of  one 
dollar,  enter  such  execution  on  his  judgment  docket,  and 
the  like  process  may  be  thereafter  had  thereon,  as  is  provided 
in  similar  cases  on  judgments  recovered  after  the  ratification 
of  this  act. 


CIVIL  PROCEDURE.  151 

§410.— Penalty  on  Sheriff  for  falling  to  return. 

Any  late  sheriff  or  other  officer  having  executions  in  his 
hands  and  failing  to  make  due  return  thereof,  and  to  pay 
the  proceeds  as  herein  prescribed,  shall  in  each  case  forfeit 
and  pay  to  any  person  grieved,  one  hundred  dollars,  to  be 
recovered  on  motion  to  the  Court. 

111. — Judgments  not  dormant ;   when, 

No  judgment  shall  be  held  to  have  become  dormant  by 
reason  of  any  stay  of  execution  thereon,  in  obedience  to  any 
general  or  special  order,  issued  by  the  General  lately  com- 
manding the  Military  District  of  which  the  State  of  North 
Carolina  formed  a  part,  and  the  time  during  which  execu- 
tion was  so  stayed,  shall  not  be  counted  in  determining  any 
question  respecting  a  judgment  being  dormant. 

£412.— Ordinance  of  14th  March,  1868,  not  affected. 

Nothing  in  this  Act  contained  shall  affect  or  impair  any 
right  given  by  an  ordinance  of  the  Convention  of  this  State 
entitled  "  An  ordinance  respecting  the  jurisdiction  of  the 
Courts  of  4this  State, "  ratified  on  the  fourteenth  day  of 
March,  1868,  in  the  cases  to  which  it  is  applicable. 


TITLE    XVIII. 


SUPREME  COURT. 


',i  113. — Jurisdiction  of  Supreme  Court. 

The  Supreme  Court  shall  have  jurisdiction  to  review  upon 
appeal,  any  decision  of  the  courts  below,  upon  any  matter  of 
law  or  legal  inference;  but  no  issue  of  fact  shall  be  tried 
before  this  court;  and  the  court  shall  have  power  to  issue 


152  THE  CODE  OF 

any  remedial  writs  necessary  to  give  it  a  general  supervision 
and  control  of  the  inferior  courts.  [Constitution,  Article  IV, 
Section  10.] 

§414. — €«s««  how  token  to  the  Supreme  Court, 

Cases  shall  be  taken  to  the  Supremo  Court  by  appeal  as 
provided  in  Chapter  I,  of  Title  XIV  of  this  Code  of  Civil 
Procedure. 

<)il5. — Claims  against  the  State. 

The  Supreme  Court  shall  have  original  jurisdiction  to 
hear  claims  against  the  State,  but  its  decision  shall  be  merely 
recommendatory;  no  process  in  the  nature  of  execution 
shall  issue  thereon :  they'  shall  be  reported  to  the  next 
session  of  the  General  Assembly  for  its  action.  [Constitution, 
Article  IV,  Section  11.] 

$416. — Manner  of  Prosecuting  claims  against  State. 

Any  person  having  any  claim  against  the  State  may  file 
his  complaint  in  the  offioe  of  the  clerk  of  the  Supreme 
Court,  setting  forth  the  nature  and  grounds  of  his  claim;  he 
shall  cause  a  copy  of  his  complaint  to  be  served  on  the 
Governor,  and  therein  request  him  to  appear  on  behalf  of  the 
State  and  answer  his  claim;  the  copy  shall  be  served  at 
least  twenty  days  before  application  for  relief  shall  be  made 
to  the  court.  In  case  of  an  appearance  for  the  State  by  the 
Governor,  or  any  other  authorized  officer,  the  pleadings  and 
trial  shall  be  conducted  in  such  manner  as  the  court  shall 
direct.  If  an  issue  of  fact  shall  be  joined  on  the  pleadings, 
the  court  shall  transfer  it  to  the  Superior  Court  of  some 
convenient  county  for  trial  by  a  jury,  as  other  issues  of  fact 
are  directed  to  be  tried;  and  the  Judge  of  the  court  before 
whom  the  trial  is  had,  shall  certify  to  the  Supreme  Court, 
at  its  next  term,  the  verdict,  and  the  case,  if  any,  made  up 
and  settled,  as  prescribed  in  section  three  hundred  and  one 
of  the  Code  of  Civil  Procedure. 

If  the  State  shall  not  appear  in  the  action  by  any  author- 
ized officer,  the  court  may  make  up  issues  and  send  thorn  for 
trial  as  aforesaid.     The  Supreme  Court  shall  in  all  cases 


CIVIL  PROCEDURE.  153 

report  the  facts  iound.  and  their  recommendation  t hereon > 
with  the  reasons  thereof,  to  the -General  Assembly  at  its 
next  term. 


Chapter 

I. 

i< 

II. 

(< 

III. 

K 

IVi 

(( 

V. 

(( 

VI. 

(< 

VII. 

(( 

VIII 

(( 

IX. 

U 

X. 

u 

XI. 

TITLE    XIX. 

PROBATE  COURTS. 

Jurisdiction  and  powers. 

Probate  of  deeds. 

Jurisdiction  over  estates  of  deceased  persons. 

Probate  of  wills. 

Letters  testamentary. 

Letters  of  administration  with  the  will  annexed. 

Letters  of  administration. 
VIII.  Letters  of  collection. 

General  provisions  respecting  executors,  &c. 

Guardian  and  ward. 

Accountings  by  executors,  administrators,  collectors  and  guar- 
dians ;  and  anditings  by  the  Judge  of  Probate. 
"       XII.    Masters  and  apprentices. 
"       XIII.  Transfer  and  appeal 
'4       XIV.  What  laws  repealed  and  unrepealed. 

CHAPTER  1. 

JURISDICTION   AND    POWERS. 

$117.— Judges  of  Probate. 

The  Clerks  of  the  Superior  Courts  are  declared  Judges  of 
Probate  in  their  respective  counties. 

$118—  Jurisdiction. 

They  have  jurisdiction : 

1.  To  take  proof  of  deeds,  bills  of  sale,  official  bonds, 
letters  of  attorney,  or  other  instruments  permitted  or 
required  by  law  to  be  registered; 


154  THE  CODE  OF 

2.  To  take  proof  of  wills  and  grant  letters  testamentary  and 
of  administration; 

3.  To  revoke  letters  testamentary  and  of  administration ; 

4.  To  appoint  and  remove  guardians  of  infants,  idiots  and 
lunatics ; 

5.  To 'bind  out  apprentices  and  to  cancel  the  indentures 
in  such  cases; 

6.  To  audit  the  accounts  of  executors,  administrators,  and 
guardians ; 

7.  To  exercise  jurisdiction  conferred  on  them  in  every 
other  case  prescribed  by  law. 

$119. — Disqualification  to  act. 

No  Judge  of  Probate  can  act  as  such  in  relation  to  any 
estate  or  proceeding: 

1.  If  he  has,  or  claims  to  have,  an  interest  by  distribution, 
by  will,  or  as  creditor,  or  otherwise ; 

2.  If  he  is  so  related  to  any  person,  having  or  claiming 
such  interest,  that  he  would,  by  reason  of  such  relationship, 
be  disqualified  as  a  juror;  but  the  disqualification  on  this 
ground  ceases,  unless  the  objection  is  made  at  the  first  hear- 
ing of  the  matter  before  him. 

3.  If  he  or  his  wife  is  a  party  or  a  subscribing  witness  to 
any  deed  of  conveyance,  testamentary  paper  or  nuncupative 
will ;  but  this  disqualification  ceases  when  such  deed,  testa- 
mentary paper,  or  will  has  been  finally  admitted  to  or 
refused  probate  in  another  probate  court,  or  before  the  Judge 
of  the  Superior  Court. 

4.  If  he  or  his  wife  is  named  as  executor  or  trustee  -in 
any  testamentary  or  other  paper;  but  this  disqualification 
ceases  when  the  will  or  other  paper  is  finally  (admitted  to, 
or)  refused  probate  in  another  probate  court,  or  before  the 
Judge  of  the  Superior  Court; 

£  1 20.— Waiter  of  disqualification. 

The  parties  may  waive  the  disqualification  specified  in 
subdivisions  1,  2  and  5  of  the  preceeding  section,  and  upon 
filing  in  the  office  such  waiver  in  writing,  the  Judge  of 
Probate  shall  act  as  in  other  cases. 


CIVIL  PROCEDURE.  155 

$491.— Removal  of  Proceedings. 

When  any  of  the  disqualifications  specified  in  section 
three  exists,  and  there  is  no  waiver  thereof,  or  cannot  be 
such  waiver,  any  party  in  interest  may  apply  to  the  Judge 
of  the  district  for  an  order  to  remove  the  proceedings  to 
the  Probate  Judge  of  an  adjoining  county  in  the  same 
district. 

5422. — Enumeration  of  powers. 

Every  Judge  of  Probate  has  power : 

1.  To  issue  subpoenas  to  compel  the  attendance  of  any 
witness  residing,  or  being  in  the  State,  or  the  production  of 
any  paper,  material  to  any  inquiry  pending  in  his  court; 

2.  To  administer  oaths  and  take  acknowledgements,  when- 
ever necessary,  in  the  exercise  of  the  powers  and  duties  of 
his  office; 

3.  To  issue  commissions  to  take  the  testimony  of  any  wit- 
ness without  this  State; 

4.  To  issue  citations  and  orders  to  show  cause  to  parties 
in  all  matters  cognizable  in  his  court,  and  to  compel  the 
appearance  of  such  parties ; 

5.  To  enforce  all  lawful  orders  and  decrees  by  execution 
or  otherwise,  against  those  who  fail  to  comply  therewith  or 
to  execute  lawful  process.  Process  may  be  issued  by  the 
Probate  Judge,  to  be  executed  in  any  county  of  the  State, 
and  to  be  returned  before  him; 

6.  To  exemplify,  under  the  seal  of  his  court,  all  transcripts 
•of  deeds,  papers  or  proceedings  therein,  which  shall  be 
received  in  evidence  in  all  the  courts  of  the  State; 

7.  To  preserve  order  in  his  court  and  to  punish  contempts; 

8.  To  adjourn  any  proceeding  pending  before  him  from 
time  to  time; 

9.  To  open,  vacate,  modify,  set  aside,  or  enter  as  of  a 
former  time,  decrees  or  orders  of  his  court,  in  the  same  man- 
ner as  courts  of  general  jurisdiction ; 

10.  To  award  costs  and  disbursements  as  pa-escribed  by  law, 
to  be  paid  personally,  or  out  of  the  estate  or  fund,  in  any- 
proceeding  before  him. 


166  THE  CODE  OF 

§423.— How  party  may  appear. 

A  party  may  appear  in  proceedings  in  which  he  is  con- 
cerned in  the  Probate  Court,  either  in  person  or  by  attorney. 

V)42i. — Jndgc  of  Probate  not  to  act  as  attorney. 

A  Judge  of  Probate  cannot  act  as  attorney  or  counsel  in 
a  civil  action,  for  or  against  an  executor,  administrator  or 
guardian,  over  whom  or  whose  accounts  he  might  by  law 
have  jurisdiction,  whether  such  action  relates  to  business  of 
the  estate  or  not.  He  cannot  act  as  attorney  or  counsel  in 
any  cause  originating  in  his  court;  nor  shall  any  partner  or 
person  connected  in  law  business  with  him  act  as  counsel  or 
attorney  in  any  proceeding  before  such  Judge  of  Probate,, 
or  originating  in  his  court. 

(>425.— Seals. 

The  seal,  to  be  used  by  the  Judges  of  Probate  must  be  the 
same  as  used  by  them  in  their  capacity  as  clerks  of  the  Supe- 
rior Courts;  but  all  orders,  decrees,  exemplifications  or  other 
papers  relating  to  the  Probate  Court,  or  proceedings  therein^ 
must  be  signed  by  them  as  Judges  of  Probate,  and  not  as 
clerks  of  the  Superior  Court. 

^426. — Files. 

Every  Judge  of  Probate  must  file  and  preserve  all  papers 
in  proceedings  before  him,  or  belonging  to  the  court;  and 
all  such  papers  and  the  books  kept  by  him  belong  to  and 
appertain  to  his  office,  and  must  [be  delivered  to  his  suc- 
cessor, 

§447 — Records. 

The  following  books  must  be  kept  by  each  Judge  of  Pro- 
bate : 

1 .  A  Records  of  wills,  in  which  must  be  recorded  all  wills,, 
with  the  certificates  of  probate  thereof; 

2.  A  Record  of  appointments  of  executors,  administrators, 
guardians,  collectors,  and  masters  of  apprentices,  with  revo- 
cations of  all  such  appointments. 


CIVIL  PROCEDURE.  157 

3.  A  Record  of  all  orders  and  decrees  passed  in  his  office, 
which  he  is  required  to  make  in  writing,  and  not  required 
to  be  recorded  in  some  other  book; 

4.  A  Record  of  accounts,  in  which  must  be  recorded  the 
•quarterly  and  annual  accounts  of  executors,  administra- 
tors, collectors  and  guardians,  as  audited  by  him  from  time 
to  time; 

5.  A  Record  of  settlements,  in  which  must  be  entered 
the  final  settlements  of  executors,  administrators,  collectors 
and  guardians. 

6.  A  Fee-book,  in  which  must  be  entered  the  items  of  all 
fees  for  services  of  the  Probate  Judge  in  each  particular 
proceeding  or  estate,  and  when  and  by  whom  paid.  And 
he  must  annually,  during  the  first  week  in  September,  at 
■own  expense,  report  to  the  Secretary  of  State  a  Verified  state- 
ment of  all  his  fees  received  or  charged  during  the  year 
precceding  the  first  day  of  September. 

')428. — Books  to  be  furnished  by  Secretary  of  State,  aud  to  be  indexed. 

The  books  required  to  be  kept  by  the  last  section  must  te 
furnished  to  the  Judge  of  Probate  by  the  Secretary  of  State; 
and  to  each  of  such  books  there  must  be  attached  ah  alpha- 
betical index  securely  bound  in  the  volume,  referring  to 
the  entries  therein  by  the  page  of  the  book.  These  books 
must,  at  all  proper  times,  be  open  to  the  inspection  of  any 
person. 


CHAPTER  II. 


PROBATE  OF  DEED*. 


s  129. — How  made. 

All  deeds  conveying  lands  in  this  State,  or  letters  of 
attorney,  or  other  instruments  concerning  the  same,  except 
leases  not  having  more  than  three  years  to  run,  must  be 


158  THE  CODE  OF 

offered  for  probate,  or  a  certified  probate  thereof  must  be 
exhibited  before  the  Judge  of  Probate  of  the  county,  in 
which  the  real  estate  is  situated,  in  the  manner  following; 

1.  Where  the  grantor  or  maker,  or  the  subscribing  wit- 
ness, reside  in  the  State,  the  deed  or  other  instrument  must 
be  acknowledged  by  such  grantor  or  maker,  or  proved  on 
the  oath  of  such  subscribing  witness; 

2.  Where  the  grantor  or  maker  and  the  subscribing  wit- 
ness are  dead,  satisfactory  proof  of  the  handwriting,  both  of 
the  grantor  or  maker  and  of  the  subscribing  witness,  must 
be  made;  unless  it  appear  by  affidavit  or  otherwise  that, 
after  due  diligence,  such  proof  is  impossible;  when  proof  of 
the  handwriting  of  the  grantor  or  maker,  or  of  the  subscrib- 
ing witness  shall  be  sufficient. 

3.  Where  the  grantor  or  maker  and  the  subscribing  wit- 
ness, reside  beyond  the  limits  of  the  State,  but  within'  the 
United  States,  the  Probate  Judge,  having  jurisdiction,  shall 
issue  under  the  seal  of  his  court,  a  commission  to  a  commis- 
sioner at  the  place  of  residence  of  such  grantor,  maker  or 
witness,  authorizing  the  commissioner  to  take  the  acknowl- 
edgment of  the  parties  to  the  deed,  or  the  examination  on 
oatii  of  the  witness  thereto,  touching  the  execution  thereof. 
The  proceedings  of  the  Commissioner,  so  authorized,  being 
returned  to  the  Probate  Judge  Avho  issued  the  same,  he  may 
proceed  to  adjudge,  that  such  deed  or  other  instrument  is 
duly  acknowled  or  proved. 

4.  Where  the  acknowledgment  or  proof  of  any  deed  or 
other  instrument  is  taken  or  made,  in  the  manner  directed 
by  the  laws  of  this  State,  before  any  commissioner  of  affi- 
davits for  the  State  of  North  Carolina,  appointed  by  the 
Governor  thereof,  in  any  of  the  States  or  territories  of  the 
United  States  or  in  the  District  of  Columbia;  and  where  such 
acknowledgment  or  proof  is  certified  by  such  commissioner, 
the  Judge  of  Probate,  having  jurisdiction,  upon  the  same 
being  exhibited  to  him,  shall  adjudge  such  deed  or  other 
instrument  to  be  duly  acknowledged  or  proved  in  the  same 
manner  as  if  made  or  taken  before  him. 


CIVIL  PROCEDURE.  159 

5.  Where  the  grantor  or  maker  and  the  subscribing  wit- 
ness, reside  beyond  the  limits  of  the  United  States,  the  deed 
or  other  instrument  may  be  personally  acknowledge  d  by 
such  grantor  or  maker,  or  proved  on  the  oath  of  such  sub- 
scribing witness,  before  the  chief  magistrate  of  any  city  in  the 
country  where  the  grantor  or  witness  is  resident;  or  before 
any  ambassador,  minister,  consul  or  commercial  agent  of 
the  United  States;  and  where  such  proof  or  acknowledgment 
is  certified  under  the  corporate  seal  of  such  chief  magistrate, 
or  under  the  official  seal  of  such  ambassador,  minister,  con- 
sul or  commercial  agent;  and  where  such  certificate  is  affixed 
to  the  deed  or  other  instrument,  and  the  same  is  exhibited 
before  the  Probate  Judge,  having  jurisdiction,  he  shall 
adjudge  that  such  deed,  or  other  instrument,  is  duly  proved, 
or  acknowledged. 

6.  Every  conveyance,  power  of  attorney  or  other  instru- 
ment affecting  the  estate,  right  or  title  of  any  married 
woman  in  lands,  tenements  or  hereditaments,  must  be  jointly 
executed  by  such  married  woman  with  her  husband;  and 
due  proof  or  acknowledgment  thereofmust.be  made  as  to 
the  husband,  before  the  Judge  of  Probate  having  jurisdic- 
tion, who  shall  take  the  acknowledgment  of  the  wife,  and 
privily  examine  her,  apart  from  her  husband,  touching  her 
voluntary  assent  thereto.  He  shall  also  endorse  thereon  a 
certificate  of  such  assent. 

When  such  proof  or  acknowledgment  is  made  as  to  the 
husband,  and  it  appears,  that  the  wife  is  a  resident  of  some 
other  State,  or  being  a  resident  of  this  State,  is  so  aged  or 
infirm,  that  she  cannot  travel  to  the  Judge  of  Probate  to 
make  such  acknowledgment  in  person:  in  that  case,  the 
Judge  of  Probate  shall  issue  a  commission  to  a  commis- 
sioner.-for  receiving  such  acknowledgment  and  for  taking 
the  private  examination  of  the  wife,  apart  from  her  hus- 
band, touching  her  assent;  which  commission,  with  a  cer- 
tificate of  the  acknowledgment  and  private  examination, 
being  returned  to  the  Probate  Judge,  he  shall  adjudge  that 
such  conveyance,  power  of  attorney  or  other  instrument  is 
duly  acknowledged,  and  that  such  examination  is  in  due 
form. 


160  THE  CODE  OF 

When  the  proof  or  acknowledgment  of  a  conveyance, 
power  of  attorney  or  other  instrument  concerning  the 
interest  of  a  married  woman  in  lands,  is  taken  before  a  com- 
missioner of  affidavits,  as  directed  in  sub-division  four,  or  in 
foreign  parts,  as  directed  in  sub-division  five,  of  this  Article ; 
no  Judge  of  Probate  shall  adjudge  such  conveyance  or  other 
instrument  to  be  duly  proved  or  acknowledged,  unless  the 
private  examination  of  such  married  woman  is  taken  accord- 
ing to  the  laws  of  this  State,  and  a  certificate  thereof  is 
attached  to  the  deed  or  other  instrument, 

«)430>— When  land  lies  in  two  or  more  counties. 

Where  real  estate  is  situated  in  two  or  more  counties,  pro- 
bate of  the  deed  or  other  instrument,  conveying  or  concern- 
ing the  same,  made  in  the  probate  court  of  any  of  said  coun- 
ties, is  sufficient. 

<;  4  31.— Official  Bonds. 

The  official  bonds  of  all  county  officers  including  consta- 
bles, must  be  acknowledged  by  the  obligors,  or  proven  on 
the  oath  of  the  subscribing  witness,  thereto,  before  the 
Judges  of  Probate  of  the  respective  counties:  Provided,  that 
the  official  bonds  of  the  Clerk  of  the  Superior  Court  may  be 
present  or  acknowledged  as  herein  directed  before  the  Reg- 
ister of  Deeds  of  the  proper  county. 

0>432.— M  lien  Judu;e  of  Pnobato  disqualified  to  a«t. 

Any  Judge  of  the  Superior  Court,  or  the  Probate  Judge  of 
an  adjoining  county,  is  authorized  to  act  in  matters  embraced 
within  this  article,  only  when  the  Judge  of  Probate  of 
the  county,  where  the  real  estate  is  situated,  is  disqualified 
under  sub- division  three,  section  three,  chapter  I,  of  this 
title. 


CIVIL  PROCEDURE.  161 

CHAPTER  III. 

JURISDICTION    OVER   THE    ESTATES    OF    DECEASED    PERSONS. 

§433.— When  Probate  Judge  has  jurisdiction  of  the  estate. 

The  Judge  of  Probate  of  each  county  has  jurisdiction, 
within  his  county,  to  take  proof  of  wills  and  to  grant  letters 
testamentary,  letters  of  administration  with  the  will  annexed 
and  in  cases  of  intestacy,  in  the  following  cases: 

1.  Where  the  decedent  at,  or  immediately  previous  to  his 
death,  was  domiciled  in  the  county  of  such  Probate  Judge, 
in  whatever  place  such  death  ma"y  have  happened. 

2.  Where  the  decedent  at  his  death,  had  fixed  places  of 
domicil  in  more  than  one  county,  the  Judge  of  Probate  of 
any  such  counties  has  jurisdiction. 

3.  Where  the  decedent,  not  being  domiciled  in  this  State, 
died  out  of  the  State,  leaving  assets  in  the  county  of  such 
Judge  of  Probate,  or  assets  of  such  decedent  thereafter  come 
into  the  county  of  such  Probate  Judge. 

4.  Where  the  decedent,  not  being  domiciled  in  this  State, 
died  in  the  county  of  such  Judge  of  Probate,  leaving  assets 
in  the  State,  or  assets  of  such  decedent  thereafter  come  into 
the  State. 

<;434. — Probate  Judge  first  acquiring  jurisdiction  to  have  exclusive  jurisdiction. 

The  Judge  of  Probate,  who  first  gains  and  exercises  juris- 
diction under  sub-division  two  and  three,  of  the  preceeding 
section,  thereby  acquires  sole  and  exclusive  jurisdiction  over 
t4ie  decedent's  estate. 


CHAPTER  IV. 

PRORATE    OF    WILLS. 


$435. — How  wills  admitted  to  probate. 

Wills  and  testaments  must  be  admittei  to  probate  only  in 
the  following  manner: 
11 


162  THE  CODE  OF 

1.  In  case  a  of  written  will,  with  witnesses,  on  the  oath  of, 
at  least,  two  of  the  subscribing  witnesses,  if  living ;  but  when 
any  one  or  more  of  the  subscribing  witnesses  to  such  will, 
are  dead,  or  reside  out  of  the  State,  or  are  insane  or  other- 
wise incompetent  to  testify,  then  such  proof  may  be  taken 
of  the  handwriting,  both  of  the  testator  and  of  the  witness 
or  witnesses  so  dead,  absent,  insane  or  incompetent,  and  also 
of  such  other  circumstances,  as  will  satisfy  the  Judge  of 
Probate  of  the  genuineness  and  the  due  execution  of  such 
will. 

2.  In  case  of  a  holograph  will,  on  the  oath  of,  at  least, 
three  credible  witnesses,  Avho  state,  that  they  verily  believe 
such  will  and  every  part  thereof,  is  in  the  handwriting  of 
the  person  whose  will  it  purports  to  be,  and  whose  name 
must  be  subscribed  thereto,  or  inserted  in  some  part  thereof. 
It  must  further  appear  on  the  oath  of  some  one  of  said  wit- 
nesses, or  of  some  other  credible  person,  that  such  will  was 
found  among  the  valuable  papers  and  effects  of  the  decedent, 
or  was  lodged  in  the  hands  of  some  person  for  safe  keeping. 

3.  In  case  of  a  nuncupative  will,  where  the  estate  exceeds 
two  hundred  dollars;  on  the  oath  of,  at  least  two  credible 
witnesses  present  at  the  making  thereof,  who  state  that  they 
were  specially  required  to  bear  witness  thereto  by  the  tes- 
tator himself. 

It  must  also  be  proved  that  such  nuncupative  will  was 
made  in  the  testator's  last  sickness,  in  his  own  habitation, 
or  where  he  had  been  previously  resident,  for,  at  least,  ten 
days,  unless  he  died  on  a  journey  or  from  home. 

No  nuncupative  will  shall  be  proved  by  the  witnesses 
after  six  months  from  the  making  thereof,  unless  it  was  put 
in  writing  within  ten  days 'from  such  making;  nor  shall  it 
be  proved  till  a  citation  has  been  first  issued  or  publication 
been  made  for  six  weeke  in  some  newspaper  printed  in  the 
State,  to  call  in  the  widow  and  next  of  kin  to  contest  such 
will  if  they  think  proper. 

$136.— Executor  not  ineonipeteat  as  a  witness. 

No  person,  on  account  of  being  an  executor  of  a  will,  is 
incompetent  as  a  witness  to  prove  the  execution  thereof. 


CIVIL  PROCEDURE.  163 

§43T. — Proofs  aud  examinations  iu  writing. 

Every  Judge  of  Probate  shall  take  in  writing  the  proofs 
and  examinations  of  the  witnesses  touching  the  execution 
of  a  will;  and  he  shall  embody  the  substance  of  such  proofs 
and  exaninations,  in  case  the  will  is  admitted  to  probate,  in 
his  certificate  of  the  probate  thereof,  which  certificate  must 
be  recorded  with  the  will.  The  proofs  aud  examinations  as 
taken  must  be  filed  in  the  office. 

$438. — Probate  how  far  touelusivc. 

Such  record  and  probate  is  conclusive  in  evidence  of  the 
validity  of  the  will,  until  it  is  vacated  on  appeal  or  declared 
void  by  a  competent  tribunal. 

§439.— Who  may  apply  for  probate. 

Any  executor  named  in  a  will  may,  at  any  time  after  the 
death  of  the  testator,  apply  to  the  Judge  of  Probate,  having 
jurisdiction,  to  have  the  same  admitted  to  probate. 

$140.— Who  may  apply  when  executor  does  not. 

If  no  executor  apply  to  have  the  will  proved  within  sixty 
days  after  the  death  of  the  testator,  any  devisee  or  legatee 
named  in  the  will,  or  any  other  person  interested  in  the 
estate,  may  make  such  application,  upon  ten  days'  notice 
ffWeof  to  the  executor. 

§441.— What  to  be  shown  on  application. 

On  application  to  the  Judge  of  Probate,  he  must  ascertain 
by  affidavit  of  the  applicant: 

1.  That  such  applicant  is  the  executor,  devisee  or  legatee 
named  in  the  will,  or  is  some  other  person  interested  in  the 
estate,  and  how  so  interested. 

2.  The  value  and  nature  of  the  testator's  property,  as  near 
as  can  be  ascertained. 

3.  The  names  and  residence  of  all  parties  entitled  to  the 
testator's  property,  it  known,  or  that  the  same  on  diligent 
inquiry   cannot   be   discovered;  which    of  said  parties   in 


164  THE  CODE  OF 

interest  are  minors,  and  whether  with  or  without  guardians, 
and  the  names  and  residence  of  such  guardians,  if  known. 

Such  affidavit  shall  be  recorded  with  the  will  and  the 
certificate  of  probate  thereof,  if  the  same  is  admitted  to 
probate. 

§442.— Prod  action  of  will  compelled  by  process. 

Every  Judge  of  Probate  having  jurisdiction,  on  application 
by  affidavit  setting  forth  the  facts,  shall,  by  summons,  com- 
pel any  person  in  the  State,  having  in  possession  the  last 
will  of  any  decendent,  to  exhibit  the  same  in  his  court  for 
probate ;  and  whoever  being  duly  summoned,  refuses  in  con- 
tempt of  the  court,  to  produce  such  will,  or  (the  same  having 
been  parted  with  by  him)  refuses  to  inform  the  court  on  oath 
where  such  will  is,  or  in  what  manner  he  has  disposed  of  it, 
shall,  by  order  of  the  Probate  Judge,  be  committed  to  the 
prison  of  the  county;  there  to  remain  without  bail  till  such 
will  be  produced  or  accounted  for,  and  due  submission  made 
for  the  contempt. 

<> 443.— Will  made  without  the  State;  how  proved. 

Whenever  it  is  suggested  to  the  probate  court,  by  affi- 
davit or  otherwise,  that  a  will  has  been  made  without  the 
State,  disposing  of  or  charging-  land  or  other  property  within 
the  State,  the  Judge  of  Probate  of  the  county,  where  the 
property  is  situated  may  issue  a  commission  to  such  person 
as  he  may  select,  authorizing  the  commissioner  to  take  the 
examination  of  such  witnesses  as  may  be  produced,  touch- 
ing the  execution  thereof,  and  upon  return  of  such  commis- 
sion, with  the  examination,  he  may  adjudge  the  said  will  to 
be  duly  proved  or  otherwise,  as  in  cases  on  the  oral  examina- 
tion of  witnesses  before  him,  and  if  duly  proved,  such  will 
shall  be  recorded. 

§14'. — Villi  of  citizen  or  subjeit  of  another  country  ;  how  allowed  and  record- 
ed in  this  State. 

Whenever  any  will,  made  by  a  citizen  or  subject  of  any 
other  State  or  country,  is  duly  proved  and  allowel  in   such 


CIVIL  PROCEDURE.  165 

State  or  country,  according  to  the  laws  thereof,  a  copy  or 
exemplification  of  such  will,  duly  certified  and  authenticated, 
when  produced  or  exhibited  before  the  Judge  of  Probate  of 
any  county,  wherein  any  property  of  the  testator  may  be, 
shall  be  allowed,  filed  and  recorded  in  the  same  manner  as 
if  the  original,  and  not  the  copy,  had  been  produced,  proved 
and  allowed  before  such  Probate  Judge.  But  when  any  such 
will  contains  any  devise  or  disposition  of  real  estate  in  this 
State,  such  devise  or  disposition  shall  not  have  any  validity 
or  operation,  unless  the  will  is  executed  according  to  the 
laws  of  this  State ;  and  that  fact  must  appear  affirmatively 
in  the  certified  probate  or  exemplification  of  the  will ;  and  if 
it  do  not  so  appear,  the  Judge  of  Probate  before  whom  the 
copy  is  exhibited,  shall  have  power  to  issue  a  commission 
for  taking  proofs,  touching  the  execution  of  the  will,  as  pre- 
scribed in  the  preceding  section;  and  the  same  may  be 
adjudged,  duly  proved,  and  shall  be  recorded  as  therein  pro- 
vided. 

$445. — Will  of  citizen  of  this  State  proved  elsewhere  ;  how  proved  and  recorded 
here. 

When  a  will,  made  by  a  citizen  of  this  State  is  proved  and 
allowed  in  some  other  State  or  country,  and  the  original  will 
cannot  be  removed  from  its  place  of  legal  deposit  in  such 
other  State  or  country,  for  probate  in  this  State ;  the  Probate 
Judge  of  the  county,  where  the  testator  had  his  last  usual 
residence  or  has  any  property,  upon  a  duly  certified  copy  or 
exemplification  of  such  will  being  exhibited  to  him  for  pro- 
bate, shall  take  every  order  and  proceeding  for  proving, 
allowing  and  recording  said  copy  as  by  law  might  be  taken 
upon  the  production  of  the  original. 

§116.— Caveat. 

At  the  time  of  application  for  the  probate  of  any  will,  or 
at  any  time  thereafter,  as  prescribed  by  law,  any  person 
entitled  under  such  will  or  interested  in  the  estate,  mav 
appear  in  person  or  by  attorney  before  the  probate  court, 
and  enter  a  caveat  to  the  probate  of  such  will. 


166  THE  CODE  OF 

§447. — Transferred  to  Superior  Court ;  when. 

Upon  any  caveator  giving  bond,  with  sufficient  surety  to 
be  approved  by  the  Probate  Judge,  in  the  sum  of  two 
hundred  dollars,  payable  to  the  propounder  of  the  will,  con- 
ditioned to  pay  all  costs  which,  may  be  adjudged  against 
such  caveator  in  the  Superior  Court,  by  reason  of  his  failure 
to  prosecute  his  suit  with  effect ;  the  Probate  Judge  shall 
transfer  the  cause  to  the  Superior  Court  for  trial ;  and  he 
shall  also  forthwith  issue  a  citation  to  all  devisees,  legatees 
or  other  parties  in  interest  within  the  State,  and  cause  pub- 
lication to  be  made,  for  six  weeks  in  some  newspaper  printed 
in  the  State,  for  non-residents,  to  appear  at  the  term  of  the 
Superior  Court,  to  which  the  proceeding  is  transferred,  and 
to  make  themselves  proper  parties  to  the  said  proceeding, 
if  they  choose. 

§448. — Order  to  suspend  proceedings. 

Where  a  caveat  is  entered  and  bond  given,  as  directed  in 
the  last  two  sections,  the  Judge  of  Probate  shall  forthwith 
issue  an  order  to  any  personal  representative,  having  the 
estate  in  charge,  to  suspend  all  further  proceedings  in  rela- 
tion to  the  estate,  except  the  preservation  of  the  property 
and  the  collection  of  debts,  until  a  decision  of  the  issue  is 
had. 


CHAPTER  V. 


LETTERS    TESTAMENTARY. 


§449.— Who  is  disqualified  to  serve  as  executor. 

The  Judge  of  Probate  shall  not  issue  letters  testamentary 
to  any  person  who,  at  the  time  of  applying  to  qualify,  is 

1.  Under  the  age  of  twenty-one  years ; 

2.  A  person  convicted  of  an  infamous  crime ; 


CIVIL  PROCEDURE.  167 

3.  Who,  on  proof,  is  adjudged  by  the  probate  court,  in- 
competent to  execute  the  duties  of  such  trust  by  reason  of 
drunkenness,  improvidence,  or  want  of  understanding; 

4.  Who  fails  to  take  the  oath  or  to  give  bond  in  cases 
where  executors  are  required  by  law  to  give  bond ; 

5.  Who  has  renounced  his  executorship. 

§450. — Executor  may  renounce. 

Any  person  appointed  as  executor  may  renounce  the  office 
by  a  writing  signed  by  him,  and  on  the  same  being  acknowl- 
edged or  proved  to  the  satisfaction  of  the  Probate  Judge,  it 
shall  be  filed. 

§451* — When  executor  deemed  to  hare  renounced. 

If  any  person  appointed  an  executor  does  not  qualify  or 
renounce  within  sixty  days  after  the  will  is  admitted  to  pro- 
bate, the  Judge  of  Probate,  on  the  application  of  any  other 
executor  named  in  the  same  will,  or  any  party  interested, 
shall  issue  a  citation  to  such  person  to  show  cause  why  he 
should  not  be  deemed  to  have  renounced.  If,  upon  service 
of  the  citation,  he  does  not  qualify  or  renounce  within  such 
time,  not  exceeding  thirty  days,  as  is  allowed  in  the  citation, 
an  order  must  be  entered  by  the  Judge  of  Probate  decree- 
ing that  such  persons  has  renounced  his  appointment  as 
executor. 

()152' — Executor  under  disqualification  of  age  or  absence. 

Where  any  executor  named  in  the  will  is  under  the  dis- 
qualification of  non-age,  specified  in  section  four  hundred 
and  forty-nine,  or  is  temporarily  absent  from  the  State, 
such  executor  is  entitled  to  six  months,  after  coming  of  age 


168  THE  CODE  OF 

or  after  his  return  to  the  State,  in  which  to  make  application 
to  qualify  and  take  letters  testamentary. 


CHAPTER  VI. 

LETTERS   OF   ADMINISTRATION   WITH   WILL   ANNEXED. 

§153.— To  be  granted  ;  when  and  to  whom. 

If  there  is  no  executor  appointed  in  the  will,  or  if,  at  any 
time,  by  reason  of  death,  incompetency,  adjudged  by  the 
Probate  Court,  renunciation,  actual  or  decreed,  or  removal 
by  order  of  the  court,  or  on  any  other  account,  there  is  no  exe- 
cutor qualified  to  act,  the  Judge  of  Probate  may  issue  letters 
of  administration,  with  the  will  annexed,  to  some  suitable 
person  or  persons,  in  the  order  prescribed  in  section  four 
hundred  and  fifty-six,  Chapter  VII. 

§454.— Qualifications.  &e. 

Administrators  ( in  cases  prescribed  in  the  preceeding 
section)  shall  have  the  same  qualifications  and  give  the  same 
bond  as  other  administrators. 

$455.— Will  of  testator  to  be  olserved. 

In  all  cases,  where  letters  of  administration  with  the  will 
annexed,  are  granted,  the  will  of  the  testator  must  be 
observed  and  performed  by  the  administrator  with  the  will 
annexed,  both  in  respect  to  real  and  personal  property,  and 
an  administrator  with  the  will  annexed,  has  all  the  rights 
and  powers,  and  is  subject  to  the  same  duties  as  if  he  had 
been  named  executor  in  the  will. 


CIVIL  PROCEDURE.  169 


CHAPTER  VII. 


LETTERS    OF    ADMINISTRATION. 


<>456. — To  whom  granted. 

Letters  of  administration,  in  case  of  intestacy,  shall  be 
granted  to  the  persons  entitled  thereto,  and  applying  for 
the  same,  in  the  following  order : 

1.  To  the  husband  or  widow ; 

2.  To  the  next  of  kin  in  the  order  of  their  degree,  where 
they  are  of  different  degrees — if  of  equal  degree,  to  one  or 
more  of  them,  at  the  discretion  of  the  probate  court ; 

3.  To  the  most  competent  creditor,  who  resides  within  the 
State,  and  proves  his  debt  on  oath,  before  the  probate  court ; 

4.  To  any  other  person  legally  competent. 

2  457. — Disqualifications. 

The  Probate  Judge  shall  not  issue  letters  of  administra- 
tion to  any  person,  who,  at  the  time  of  appearing  to  qualify,  is 

1.  Under  -the  age  of  twenty-one  years ; 

2.  An  alien,  who  is  a  non-resident  of  this  State ; 

3.  A  person  who  has  been  convicted  of  an  infamous  crime; 

4.  Who,  on  proof,  is  adjudged  by  the  Probate  Court 
incompetent  to  execute  the  duties  ot  such  trust,  by  reason 
of  drunkenness,  improvidence  or  want  of  understanding; 

5.  Who  fails  to  take  the  oath  or  give  the  bond  required 
by  law. 

§158. — Joining  persons  not  entitled. 

With  the  consent  of  the  person  or  persons  who  arc  enti- 
tled, letters  of  administration  may  be  granted  to  one  or  more 
competent  persons  who  are  not  entitled,  jointly  with  those 
who  are  entitled.  Such  consent  must  be  in  writing,  and 
the  Probate  Jude  shall  file  the  same. 


170  THE  CODE  OF 

§459. — Renunciation  of  persons  having  prior  right. 

When  any  person  applies  for  administration,  and  any  .other 
person  has  prior  right  thereto,  a  written  renunciation  of  the 
person  or  persons,  having  such  prior  right,  must  be  pro- 
duced and  filed  with  the  Probate  Judge. 

$165. — Persons  having  prior  right  disqualified  or  absent. 

When  any  person  having  such  prior  right  to  administra- 
tion, is  under  the  disqualification  of  age  specified  in  section 
four  hundred  and  fifty-six.  or  is  temporarily  absent  from  the 
State,- such  person  is  entitled  to  six  months,  after  the  disa- 
bility of  age  is  removed  or  his  return  to  the  State,  in  which 
to  renounce  his  right  or  apply  for  letter  of  administration, 

§461. — What  mnst  be  shoMn  on  application. 

On  application  for  letters  of  administration,  the  Judge  of 
Probate  must  ascertain  by  affidavit  of  the  applicant  or 
otherwise ; 

1.  The  death  of  the  decedent  and  his  intestacy. 

2.  That  the  applicant  is  the  proper  person  entitled  to 
administration,  or  that  he  applies  after  the  renunciation  of 
the  person  or  persons  so  entitled. 

3.  The  value  and  nature  of  the  intestator's  property,  the 
names  and  residence  of  all  parties  entitled  as  heirs  or  dis- 
tributees of  the  estate,  if  known,  or  that  the  same  cannot 
on  diligent  enquiry  be  procured;  which  of  said  parties  are 
minors,  and  whether  with  or  without  guardians,  and  the 
names  and  evidence  of  such  guardians,  if  known. 

Such  affidavit  or  other  proof  must  be  recorded  and  filed 
by  the  Probate  Judge. 

§462. — Contested  administration. 

Any  person  interested  in  the  estate  may,  on  complaint 
filed  and  notice  to  the  applicant,  contest  the  right  of  such 
applicant  for  letters  of  administration,  and  on  any  issue  of 
fact  joined,  or  matter  of  law  arising,  on  the  pleadings,  the 


CIVIL  PROCEDURE.  171 

cause  may  be  transferred  to  the  Superior  Court  for  trial,  or 
an  appeal  be  taken,  as  in  other  cases  provided  in  this  Act, 
Chapter  XIII. 


CHAPTER  VIII. 


LETTERS    OF    COLLECTION. 


£463.— AYhen  to  i$*ue  and  to  whom. 

Whenever  for  any  reason,  a  delay  is  necessarily  produced 
in  the  admission  of  a  will  to  probate,  or  in  granting  letters 
testamentary,  letters  of  administration  or  letters  of  adminis- 
tration with  the  will  annexed,  the  Judge  of  Probate  may 
issue  to  some  discreet  person  or  persons  at  his  option,  letters 
of  collection,  authorizing  the  collection  and  preservation  of 
the  property  of  the  decedent. 

§461. — Qualifications,  &c. 

Every  collector  shall  have  the  qualifications,  and  give  the 
bond  prescribed  by  law  for  an  administrator. 

$465.— Authority,  &c. 

Every  collector  has  authority  to  collect  the  personal  pro- 
perty, take  possession  and  receive  the  rents  and  profits  of 
the  real  property,  preserve  and  secure  the  estate,  and  collect 
the  debts  and  credits  of  the  decedent.  And  for  these  pur- 
poses, he  may  commence  and  maintain  or  defend  suits,  and 
he  may  sell,  under  the  direction  and  order  of  the  Probate 
Judge,  any  personal  property  for  the  preservation  and  benefit 
of  the  estate.  He  may  be  sued  for  debts,  due  by  the  dece- 
dent; and  he  may  pay  funeral  expenses  and  other  debts. 

$466. — Authority  when  to  tease,  &e. 

"When  letters  testamentary,  letters  of  administration,  or 
letters  of  administration  with  the  will  annexed,  are  granted, 
the  powers  of  such  collector  shall  cease,  but  any  suit  brought 


172  THE   CODE  OF 

by  the  collector  may  be  continued  by  his  successor,  the 
executor  or  the  administrator,  in  his  own  name.  Such  col- 
lector must,  on  demand,  deliver  to  the  executor  or  adminis- 
trator all  the  property,  rights  and  credits  of  the  decedent 
under  his  control,  and  render  an  account,  on  oath,  to  the 
Probate  Judge  of  all  his  proceedings.  Such  delivery  and 
account  may  be  enforced  by  citation,  order  or  attachment. 


CHAPTER  IX. 

GENERAL  PROVISIONS  RESPECTING  EXECUTORS,  &C. 

$467.— Oaths,  &c. 

Before  letters  testamentary,  letters  of  administration  with 
the  will  annexed,  letters  of  administration  or  letters  of  col- 
lection, are  issued  to  any  person,  he  must  take  and  subscribe 
an  oath  or  affirmation,  before  the  Judge  of  Probate,  that  he 
will  faithfully  and  honestly  discharge  the  duties  of  his  trust, 
which  oath  must  be  filed  in  the  office  of  the  Probate  Judge. 

§468.— Bond,  &c. 

Every  executor  from  whom  a  bond  is  now  required  by  law, 
and  every  administrator  and  collector,  before  letters  are 
issued,  must  give  a  bond  payable  to  the  State,  with  two  or 
more  sufficient  sureties,  to  be  approved'by  the  Probate  Judge, 
and  to  be  jointly  and  severally  bound.  The  penalty  in  such 
bond  must  be  double,  at  least,  the  value  of  all  property,  real 
and  personal,  of  the  decedent ;  which  value  is  to  be  ascer- 
tained, by  the  Probate  Judge,  by  the  examination  on  oath 
of  the  applicant  and  of  any  other  person.  The  bond  must  be 
conditioned,  that  such  executor,  administrator  or  collector 
shall  faithfully  execute  the  trust  reposed  in  him  as  such,  and 
obey  all  lawful  orders  of  the  probate  or  other  court,  touching 
the  administration  of  the  estate  committed  to  him. 


CIVIL  PROCEDURE.  173 

<j469. — Revocation  of  letters  on  proof  of  will,  &c. 

If  letters  of  administration  are  issued,  a  will  is  subse- 
quently proved  and  letters  testamentary  are  issued  thereon ;. 
or,  if  alter  letters  testamentary  are  issued,  a  revocation  of 
the  will,  or  a  subsequent  testamentary  paper  revoking  tho 
appointment  of  executors,  is  proved  and  letters  are  issued 
thereon,  the  Judge  of  Probate  must  thereupon  revoke  the 
letters  first  issued,  by  an  order  in  writing  to  be  served  on. 
the  person  to  whom  such  first  letters  were  issued ;  and,  until 
service  thereof,  the  acts  of  suph  person,  done  in  good  faith 
are  valid. 

§470. — Revocation  on  ground  of  disqualification  or  defanlt. 

If,  alter  any  letters  have  been  issued,  it  appears  to  the  Pro- 
bate Judge,  or  if  complaint  is  made  to  him  on  affidavit,  that 
any  person  to  whom  they  were  issued,  is  legally  incompetent 
to  have  such  letters,  or  that  such  person  has  been  guilty  of 
default  or  misconduct  in  the  due  execution  of  his  office,  or 
that  the  issue  of  such  letters  was  obtained  by  false  repre- 
sentations made  by  such  person,  the  Judge  of  Probate  shall 
issue  an  order  requiring  such  person  to  show  cause  why  the 
letters  should  not  be  revoked.  On  the.  return  of  such  order, 
duly  executed,  if  the  objections  are  found  valid,  the  letters 
issued  to  such  person  must  be  revoked  and  superseded,  and 
his  authority  shall  thereupon  cease. 

^471. — Letters,  how  issued  and  tested. 

All  letters  must  be  issued  in  the  name  of  the  State,  and 
tested  in  the  name  of  the  Judge  of  Probate,  signed  by  him, 
and  sealed  with  his  seal  of  office. 


CHAPTER  X. 


GUARDIAN  AND  WARD. 


£472.— Power  over  orphans'  estates  and  to  appoint  gnardians. 

Each  Judge  of  Probate  in  his  county  has  full  power  and 
authority   to  take  cognizance   of  all   matters   concerning* 


174  THE  CODE  OF 

orphans  and  their  estates,  and  to  appoint  guardians,  where 
it  may  be  deemed  necessary,  in  the  manner  heretofore  exer- 
cised by  the  late  County  and  Superier  Courts. 

£4T3.— Inquisition  of  lunacy. 

Any  person  in  behalf  of  one  who  is  deemed  an  idiot,  ine- 
briate or  lunatic,  or  incompetent  from  want  of  understand- 
ing to  manage  his  own  affairs,  by  reason  of  the  excessive 
use  of  intoxicating  drinks  or  other  cause,  may  file  a  petition 
before  the  Judge  of  Probate  of  the  county  where  such  sup- 
posed idiot,  inebriate  or  lunatic  resides,  setting  forth  the 
facts,  duly  verified  by  the  oath  of  the  petitioner.  Where- 
upon such  Judge  of  Probate  shall  issue  an  order,  upon 
notice  to  the  supposed  idiot,  inebriate  or  lunatic,  to  the 
sheriff  of  the  county  commanding  him  to  summon  a  jury  of 
twelve  men  to  inquire  into  the  state  of  mind  of  such  sup- 
posed idiot,  inebriate  or  lunatic.  The  jury  shall  make  return 
of  their  proceedings  under  their  hands  to  the  Judge  of  Pro- 
bate, who  shall  file  and  record  the  same;  and  he  shall  pro- 
ceed to  appoint  a  gaurdian  of  any  person  so  found  to  be  an 
idiot,  inebriate  or  lunatic,  by  inquisition  of  a  jury,  as  in  cases 
oforphana 

\)17i.— Proceedings  on  application  for  guardianship. 

On  application  to  any  Judge  of  Probate  for  the  custody 
and  guardianship  of  any  infant,  idiot,  inebriate  or  lunatic,  it 
is  the  duty  of  such  Judge  of  Probate  to  inform  himself  of 
the  circumstances  of  the  case  on  the  oath  of  the  applicant 
or  of  any  other  person;  and  if  none  of  the  relatives  of  the 
infant,  idiot,  inebriate  or  lunatic  are  present  at  such  applica- 
tion, the  Probate  Judge  must  assign,  or,  for  any  other  good 
cause,  he  may  assign  a  day  for  the  hearing;  and  he  shall 
thereupon  direct  notice  thereof  to  be  given  to  such  of  the 
relatives  and  to  such  other  persons,  if  any,  as  he  deem  it 
proper  to  notify.  On  the  hearing,,  he  shall  ascertain,  on 
oath,  the  amount  of  the  property,  real  and  personal,  of  the 
infant,  idiot,  inebriate  or  lunatic,  and  the  value  of  the  rents 


CIVIL  PROCEDURE.  175 

^and  profits  or  the  real  estate;  and  he  may  grant  or  refuse 
the  application,  or  commit  the  guardianship  to  some  other 
person,  as  he  may  think  best  for  the  interest  of  the  infant, 
idiot,  inebriate  or  lunatic. 

■§  175 . — Letters  of  appointment. 

The  Judge  of  Probate  must  issue  to  every  guardian 
appointed  by  him  a  letter  of  appointment,  which  shall  be 
signed  by  him  and  sealed  with  the  seal  with  the  of  his  office. 

^476. — Reference  to  sections  456,  467,  469. 

The  provisions  of  sections  four  hundred  and  fifty-six,  four 
hundred  andsixty-seven,  and  four  hundred  and  seventy,  of 
this  Act,  in  reference  to  qualification;  in  reference  to  the 
execution  of  a  bond;  and  in  reference  to  a  revocation  of 
appointment  on  the  ground  of  misconduct  or  disqualifica- 
tion, shall  apply  to  the  case  of  guardians  appointed  by  a 
Judge  of  Probate. 


CHAPTER  XL 

.ACCOUNTINGS    BY    EXECUTORS,    ADMINISTRATORS,    COLLECTORS    AND 
GUARDIANS;    AND    AUDITINGS    BY   THE    JUDGE    OF    PROBATE. 

;177. — Make  return  on  oath  ;  when. 

Every  executor,  administrator,  collector  and  guardian 
shall,  within  three  months  after  his  qualification  or  appoint- 
ment, make  return  on  oath  to  the  Judge  of  Probate,  of  all 
the  estate  in  his  hands  or  received  by  himjup  to  that  time; 
hut  such  time  may  be  extended  by  the  Probate  Judge,  on 
good  cause  shown,  not  exceeding  six  months. 

§178.— AnBda]  accounts. 

Every  executor,  administrator,  collector  and  guardian, 
shall,  within  twelve  months  from  the  date  of  his  qualifica- 
tion or  appointment,  aad  annually,  so  long  as  any  of  the 


176  THE  CODE  OF 

estate  remains  in  his  control,  file,  in  the  office  of  the  Judge 
of  Probate,  an  inventory  and  account,  under  oath,  oi  the 
amount  of  property  received  by  him,  or  invested  by  him 
and  the  manner  and  nature  of  such  investment,  and  his 
receipts  and  disbursements  for  the  past  year  in  the  form  of 
debit  and  credit.  He  must  produce  vouchers,  which "iiuwt 
bo  filod.with  the-Jmlge  uf  Piubtt^.,  for  all  payments.  The 
Judge  of  Probate  may  examine  on  oath,  such  accounting 
party,  or  any  other  person,  concerning  the  receipts,  dis- 
bursements or  any  other  matter  relating  to  the  estate;  and, 
having  carefully  revised  and  audited  such  account,  if  he 
approve  the  same,  he  must  endorse  his  approval  thereon, 
which  shall  be  deemed  prima  faciea  evidence  of  correctness. 
Each  Judge  of  Probate  must  annex  or  attach  a  copy  of  this 
section  to  all  letters  issued  by  him. 

§iT9.— Failure  to  account. 

If  any  executor,  administrator,  collector  or  guardian  omits 
to  account,  as  directed  in  the  preceding  section,  or  renders 
an  insufficient  and  unsatisfactory  account,  the  Probate  Judge 
shall  forthwith  order  such  executor,  administrator,  collector 
or  guardian  to  render  a  full  and  satisfactory  account,  as 
required  by  law,  within  twenty  days  after  service  of  the 
order.  Upon  return  of  the  order,  duly  served,  if  such 
executor,  administrator,  collector,  or  guardian,  fail  to  appear 
or  refuse  to  exhibit  such  account,  the  Judge  of  Probate  may 
issue  an  attachment  against  him  for  a  contempt  and  commit 
him  till  he  exhibit  such  account,  and  may  likewise  remove 
him  from  office. 

$480.— Vouchers.  *» 

Vouchers  are  presumptive  evidence  of  disbursement, 
without  other  proof,  unless  impeached.  If  lost,  the  account- 
ing party  must,  if  required,  make  oath  to  that  fact,  setting 
forth  the  manner  of  loss,  and  state  the  contents  and  purport 
of  the  voucher. 


CIVIL  PROCEDURE.  177 

§481.— Final  accounts. 

An  executor,  or  administrator,  may  be  required  to  file  his 
final  account  for  settlement  in  the  court  of  probate  by  a 
citation  directed  to  him,  at  any  time  after  two  years  from 
his  qualification,  at  the  instance  of  any  person  interested  in 
the  estate;  and  a  guardian  may  be  required  to  file  such 
account  at  any  time  after  six  months  from  the  ward's  coming 
of  full  age,  or  the  cessation  of  the  guardianship :  but  such 
account  maybe  filed  voluntarily  at  any  time;  and,  whether 
the  accounting  be  voluntary  or  compulsory,  it  shall  be 
audited  and  recorded  by  the  Judge  of  Probate. 


CHAPTER  XII. 


MASTERS    AND    APPRENTICES. 


§482. — Binding  to  be  by  indenture. 

The  binding  of  apprentices  shall  be  by  indenture,  made 
in  the  name  of  the  Judge  of  Probate  of  the  county  of  the 
one  part,  and  of  the  master  or  mistress  of  the  other  part; 
which  indenture  shall  be  recorded  and  filed  in  the  office. of 
the  probate  court. 

§483.— Remedy  thereon. 

The  apprentice  may  bring  an  action  on  such  indenture  in 
the  name  of  the  Judge  of  [Probate  and  his  successors,  and 
recover  any  damages  sustained  by  reason  of  the  breach  of 
the  covenants  contained  in  said  indenture. 

§484,— Who  may  be  apprenticed. 

The  Judges  of  Probate  in  their  respective  counties  shall 
bind  out  as  apprentices : 

1.  All  orphans  whose  estates  are  of  so  small  value,  that 
no  person  will  educate  and  maintain  them  for  the  profits 
thereof; 

12 


+ 


178  THE  CODE  OF 

'2.  All  infants  whose  fathers  have  deserted  their  families 
=and  been  absent  for  one  year,  leaving  them  without  suffi- 
'cient  support; 

3.  All  infants  (not  living  with  the  father)  whose  mother 
has  secured  to  hecsuch  property  as  the  infants  may  there- 
after acquire,  provided  the  Probate  Judge  deems  it  improper 
to  permit  such  infants  to  remain  with  the  mother; 

4.  All  infants  who  make  application  to  the  Board  of  Com- 
missioners of  the  county  for  relief  out  of  the  funds  for  the 
poor,  and  such  fact  is  certified  by  the  Board  to  the  Judge  of 
Probate ; 

5.  All  infants,  whose  parents  do  not  habitually  employ 
their  time  in  some  honest,  industrious  occupation. 

§4S5. — For  what  time  boniid. 

Every  apprentice  shall  be  bound  to  some  discret  person 
approved  by  the  Judge  of  Probate,  till  the  age  of  twenty- 
one. 

§486. — Dnties  of  masters. 

The  master  shall  provide  for  the  apprentice: 

1.  Diet,  clothes,  lodgings  and  accommodation  fit  and 
ioecessary; 

2.  Education  in  reading,  writing  and  arithmetic; 

3.  Six  dollars  in  cash,  a  new  suit  of  clothes  and  a  new 
JBible,  at  the  end  of  the  apprenticeship; 

4.  Such  other  education,  sum  of  money,  or  articles  of 
furniture  or  implements  of  trade,  as  may  be  agreed  on 
between  the  court  and  the  master,  and  inserted  in  the 
indenture. 

;§48T.—  Duty  of  Probate  Judge. 

On  application  of  any  person  to  have  an  apprentice  bound 

to  him,  it  is  the  duty  of  the  Judge  of  Probate  to  inform 

himself  of  the  circumstances  of  the  case;  and,  for  this  pur- 

■pose,  he  may  cite  before  him  the  relatives  of  the  orphan  or 

.  infant,  for  examination  on  oath ;  and  he  may  also  examine 

usuch  other  persons  as  he  deems  proj^er.     In  the  selection  of 


CIVIL  PROCEDURE.  179 

a  master,  he  shall  prefer,  so  far  as  may  be  consistent  in  other 
respects  with  the  comfort  and  interest  of  the  apprentice, 
some  tradesman  of  a  useful  art  or  mystery. 

■§488- — Apprentices,  how  compelled  to  serve. 

If  an  apprentice  refuses  to  serve  as  required  by  the  inden- 
ture or  by  law,  the  Judge  of  Probate  may,  on  application  of 
the  master,  compel  him,  by  citation  or  otherwise,  to  appear 
for  inquiry  into  the  facts;  and  if  the  complaint  is  well- 
founded,  and  the  apprentice  persists  in  such  refusal,  the 
Judge  of  Prob&te  may  commit  him  by  warrant  to  the  House 
of  Correction  or  the  common  jail  of  the  county,  until  he 
consents. 

^489. — Misconduct  of  masters. 

Upon  complaint  of  any  apprentice  that  the  master  is 
guilty  of  cruelty,  ill-usage,  refusal  of  necessary  provisions 
or  clothing,  or  any  other  violation  of  the  indenture,  or  of 
the  law  towards  such  apprentice,  the  Judge  of  Probate  may, 
by  order,  compel  the  appearance  of  the  master  before  him, 
when  he  shall  examine  and  determine  the  complaint ;  and 
if  the  same  is  well-founded,  he  shall  cancel  the  indenture 
and  discharge  such  apprentice  from  his  obligation  of  service, 
and  may  proceed  to  appoint  another  master. 


CHAPTER  XIII. 


TRANSFER  AND  APPEAL. 


<)490.— Issnes  of  fact  and  matters  of  law. 

All  issues  of  fact  joined  before  the  Judge  of  Probate  shall 
be  transferred  to  the  Superior  Court  of  the  county  for  trial ; 
and  appeals  shall  lie  to  the  Judge  of  the  Superior  Court  of 
the  district,  either  in  term-time  or  vacation,  from  the  judg- 
ments of  the  probate  court  .in  all  matters  of  law. 

I 


180  THE  CODE  OF 

§491. — No  bond  reqnired. 

In  case  of  transfer  or  appeal,  as  provided  in  the  preceding 
section,  neither  party  is  required  to  give  a  bond  for  costs 
except  as  in  this  Title  otherwise  expressly  directed ;  and  the 
Judge  of  Probate  shall  transmit,  on  such  transfer  or  appeal, 
to  the  Superior  Court  or  the  Judge  thereof,  the  pleadings  on 
other  papers,  oh  which  the  issue  of  fact  or  of  law  arises. 

$492.— Appeals,  when  taken  and  by  whom. 

An  appeal  must  be  |taken  within  twenty  days  after  the 
entry  of  the  order  or  judgment  of  the  probate  court;  but  an 
appeal  can  only  be  taken  by  a  party  aggrieved,  who  appeared 
and  moved  for  or  opposed  the  order  or  judgment  appealed 
from,  or,  who  being  entitled  to  be  heard  thereon,  had  no 
notice  or  opportunity  to  be  heard;  which  fact  may  be  shown 
by  affidavit  or  other  proof. 


CHAPTER  XIV. 

WHAT  LAWS  REPEALED  AND  UNREPEALED. 

$493. — What  laws  repealed  and  unrepealed. 

All  laws  and  parts  of  laws  in  conflict  with  the  provisions 
of  this  Title,  are  repealed.  But  chapters  five,  thirty-seven, 
forty-six,  fifty-four,  fifty-seven  and  one  hundred  and  nineteen 
of  the  Revised  Code,  concerning  "  Apprentices,"  concerning 
"Deeds  and  Conveyances,"  concerning  "Executors  and 
Administrators,"  concerning  "  Guardian  and  Ward,"  concern- 
ing "Idiots  and  Lunatics,"  and  j concerning  "Wills  and 
Testaments,"  so  far  as  said  chapterstor^any  part  thereof,  are 
not  inconsistent  with  the  provisions  ot  this  Title,  remain  in 
force. 


•;  CIVIL  PROCEDURE.  181 

TITLE    XX. 

TIIE    COURTS    OF   JUSTICES    OF    THE    PEACE. 

$494.— Laws  repealed. 

Sections  1,  2,  3,  5,  6,  7,  8,  9,  10,  11,  12,  13,  15,  16,  17,  18 , 
19,  20,  21,  23,  24,  25,  26,  27,  28,  29,  30  and  36,  Chapter  62, 
ot  the  Revised  Code  are  repealed,  and  the  provisions  of  this 
Title  are  substituted  in  their  stead;  and  all  other  laws  in 
conflict  with  the  provisions  of  this  Title  are  repealed ;  pro- 
vided that  nothing  herein  contained  shall  be  held  to  abrogate 
in  any  manner  an  ordinance  of  the  Convention,  ratified 
March  14th,  A.  D.  1868,  entitled  "An  Ordinance  respecting 
the  jurisdiction  of  the  Courts  of  this  State." 

CHAPTER  I. 

MANNER    OF   COMMENCING    CIVIL    ACTIONS    IN   JUSTICES'    COURTS. 

$495.— Summons. 

Civil  actions  in  these  courts  shall  be  commenced  by  the 
issuing  of  a  summons. 

$496. — Summons  by  whom  issned. 

The  summons  shall  be  issued  by  the  Justice  and  signed  by 
him.  It  shall  run  in  the  name  of  the  State,  and  be  directed 
to  any  Constable  or  other  lawful  officer,  commanding  him 
to  summon  the  defendant  to  appear  and  answer  the  com- 
plaint of  the  plaintiff  at  a  place,  within  the  county,  to  be 
therein  specified,  and  at  a  time,  to  be  therein  named,  not 
exceeding  twenty  days  from  the  date  of  the  summons.  It 
shall  also  contain  the  amount  of  the  sum  demanded  by  the 
plaintiff. 

§497. — Service  and  retnrn  of  snmmous. 

The  officer  to  whom  the  summons  is  delivered  shall  exe- 
cute the  same  within  five  days  after  its  receipt  by  him,  or 


182  THE  CODE  OF 

immediately,  if  required  to  do  so  by  the  plaintiff.  Before 
proceeding  to  execute  it,  he  is  entitled  to  require  of  the 
plaintiff  his  fee  for  the  service,  and  five  cents  per  mile 
traveled  by  him  out  of  his  township  on  such  service.  When 
executed  he  shall  immediately  return  the  summons,  with 
the  date  and  manner  of  the  service  and  the  distance  traveled 
by  him  out  of  his  towuship,  to  the  Justice,  who  issued  the 
same. 


CHAPTER  II. 

JURISDICTION   AND   MANNER    OF    PROCEEDING. 

498.— Jurisdiction. 

Justices  of  the  Peace  shall  have  exclusive  original  juris- 
diction of  all  civil  actions  founded  on  contract,  except: 

1.  Wherein  the  sum  demanded  exceeeds  two  hundred 
dollars : 

2.  Wherein  the  title  to  real  estate  is  in  controversy. 

§499. — Where  sum  demanded  exceeds  two  hundred  dollars. 

Where  it  appears,  in  any  action  brought  before  a  Justice, 
that  the  sum  demanded  exceeds  two  hundred  dollars,  the 
Justice  shall  dismiss  the  action  and  render  judgment  against 
the  plaintiff  for  the  costs. 

§500— Answer  to  title. 

In  every  action  brought  in  a  court  of  a  Justice  of  the 
Peace,  where  the  title  to  real  estate  comes  in  controversy, 
the  defendant  may,  either  with  or  without  other  matter  of 
defence,  set  forth,  in  his  answer,  any  matter  showing  that 
such  title  will  come  in  question.  -Such  answer  sliall  be  in 
writing,  signed  by  the  defendant  or  his  attorney,  and  deliv- 
ered to  the  Justice. 


CIVIL  PROCEDURE.  18$ 

§501.— Aetion  to  be  dismissed,  when. 

If  it  appears  on  the  trial,  that  the  title  to  the  real  estate  is 
in  controversy,  the  Justice  shall  dismiss  the  action  and  ren- 
der judgment  against  the  plaintiff  for  the  cost. 

§502— Another  aetion  may  be  brought. 

When  a  suit  before  a  Justice,  is  dismissed  upon  answer, 
and  proof  by  the  defendant,  that  the  title  to  real  estate,  is 
in  controversy  in  the  case,  the  plaintiff  may  prosecute  an 
action  for  the  same  cause  in  the  Superior  Court,  and  the 
•defendant  shall  not  be  admitted  in  that  court,  to  deny  the 
jurisdiction  by  an  answer  contradicting  this  answer  in  the 
Justice's  court. 

§503.— Docketing  Justifes'  judgment. 

A  Justice  of  the  Peace,  on  the  demand  of  a  party  in  whose 
favor  he  has  rendered  a  judgment,  shall  give  a  transcript 
thereof,  which  may  be  filed  and  docketed  in. the  office  of  the 
Superior  Court  Clerk  of  the  county,  where  the  judgment  was 
rendered.  The  time  of  the  receipt  of  the  transcript  by  the 
clerk,  shall  be  noted  thereon  and  entered  in  the^rocket;  and 
from  that  time,  the  judgment  shall  be  a  judgment  of  the 
Superior  Court  in  all  respects.  The  execution  thereon  shall 
be  issued  by  the  Clerk  of  the  Superior  Court  to  the  sheriff  of 
the  county,  and  shall  have  the  same  effect,  and  be  executed 
in  the  same  manner  as  other  executions  of  the  Superior 
Court.  A  certified  transcript  of  such  judgment  may  be 
filed  and  docketed  in  the  Superior  Court  Clerk's  office  of  any 
other  county,  and  with  the  like  effect,  in  every  respect,  as  in 
the  county  where  the  judgment  was  rendered,  except  that  it 
shall  be  a  lien  only  from  the  time  of  filing  and  docketing 
such  transcript.  But  no  Justices'  judgment  for  a  less  sum 
than  twenty-five  dollars,  exclusive  of  costs,  shall  be  so  filed 
and  docketed  in  the  office  of  the  Clerk  of  the  Superior 
Court. 


184  THE  CODE  OF 

§501.— Rales  of  proceeding  in  Justices'  eonrt. 

RULE    I. 

The  pleadings  in  these  Courts  are : 

1.  The  complaint  of  the  plaintiff. 

2.  The  answer  by  the  defendant. 

RULE    II. 

The  pleadings  may  be  either  oral  or  wrftten ;  if  oral,  the 
substance  must  be  entered  by  the  Justice  on  his  docket ;  if 
written,  they  must  be  filed  by  the  Justice,  and  a  reference 
to  them  be  made  in  his  docket. 

RULE    III. 

The  complaint  must  state,  in  a  plain  and  direct  manner, 
the  facts  constituting  the  cause  of  action. 

RULE    IV. 

The  answer  may  contain  a  denial  of  the  complaint,  or  oi 
any  part  thereof,  and  also  a  notice,  in  a  plain  and  direct 
manner,  of  any  facts  constituting  a  defence  or  counter-claim. 

RULE    Y. 

Pleadings  are  not  required  to  be  in  any  particular  form, 
but  must  be  such  as  to  enable  a  person  of  common  under- 
standing to  know  what  is  meant. 

RULE    VI. 

[  Where  a  defendant  does  not  appear  and  ansiver,  the  irtaintiff 
must  stillprove  his  case  before  he  can  recover  f\ 

RULE    VII. 

In  an  action  or  defence,  founded  on  an  account  or  an 
instrument  for  the  payment  of  money  only,  it  is  sufficient 
for  a  party  to  deliver  the  account  or  instrument  to  the  Jus- 
tice and  state  that  there  is  due  to  him  thereon  from  the 
adverse  party  a  specified  sum,  which  he  claims  to  recover 
or  set-off. 


CIVIL  PROCEDURE.  185 


RULE   VIII. 


A  variance  between  the  evidence  on  the  trial  and  the 
allegations  in  a  pleading,  shall  be  disregarded  as  immate- 
rial, unless  the  court  is  satisfied  that  the  adverse  party  has 
been  misled  to  his  prejudice  thereby. 


RULE    IX. 


The  pleadings  may  be  amended,  at  any  time,  betore  the 
trial,  or  during  the  trial,  or  upon  appeal,  when,  by  such 
amendment,  substantial  justice  will  be  promoted.  If  the 
amendment  be  made  after  the  joining  of  the  issue,  and  it 
appears  to  the  satisfaction  of  the  court,  by  oath,  that  an 
adjournment  is  necessary  to  the  adverse  party,  in  conse- 
quence of  such  amendment,  an  adjournment  shall  be  granted. 
The  court  may  also,  in  its  discretion,  require  as  a  condition 
of  an  amendment,  .the  payment  of  costs  to  the  adverse  party. 


RULE    X. 


The  Justice  may,  at  the  joining  of  issue,  require  either 
party,  at  the  request  of  the  other,  at  that  or  some,  other  spe- 
cified time,  to  exhibit  his  account  or  demand,  or  state  the 
nature  thereof  as  far  forth  as  may  be  in  his  power;  and  in 
case  of  his  default,  the  Justice  shall  preclude  him  from 
giving  evidence  of  such  parts  thereof  as  have  not  been  so 
exhibited  or  stated. 


RULE    XI. 


Either  party  may  demur  to  a  pleading  of  his  adversary,  or 
to  any  part  thereof,  when  it  is  not  sufficiently  explicit  to 
enable  him  to  understand  it,  or  it  contains  no  cause  of  action 
or  defence,  although  it  be  taken  as  true. 


RULE    XII. 


If  the  Justice  deem  the  objection  well-founded,  he  shall 
order  the  pleading  to  be  amended  on  such  terms  as  lie  may 
think  just;  and  if  the  party  refuse  to  amend,  the  defective 

pleading  shall  be  disregarded. 


186  THE  CODE  OF 


RULE   XIII. 


The  Justice  shall  enter  all  his  proceedings  in  a  cause  tried 
before  him  in  his  docket.  No  part  of  such  proceedings  must 
be  entered  on  the  summons,  on  the  pleadings  or  on  any 
other  paper  in  the  cause. 


RULE  xiv. 


Execution  may  be  issued  on  a  judgment,  rendered  in  a 
Justices'  court,  at  any  time  within  one  year  after  the  rendi- 
tion thereof,  and  shall  be  returnable  sixty  days  from  the 
date  of  the  same. 


RULE    XV. 


The  provisions  of  the  Code  of  Civil  Procedure,  respecting 
forms  of  actions,  parties  to  actions,  the  times  of  commencing 
actions,  and  the  service  of  process  upon  corporations,  shall 
apply  to  Justices'  courts. 


RULE    XVI. 


The  defendant  may,  on  the  return  of  process  and  before 
answering,  make  an  offer  in  writing  to  allow  judgment  to 
be  taken  against  him  for  an  amount,  to  be  stated  in  such 
offer,  with  costs.  The  plaintiff  shall  thereupon,  and  before 
any  other  proceeding  be  had  in  the  action,  determine 
whether  he  will  accept  or  reject  such  offer.  If  he  accept 
the  offer,  and  give  notice  thereof  in  writing,  the  Justice  shall 
file  the  offer  and  the  acceptance  thereof,  and  render  judg- 
ment accordingly.  If  notice  of  acceptance  be  not  given, 
and  if  the  plaintiff  fail  to  obtain  judgment  for  a  greater 
amount,  exclusive  of  costs,  than  has  been  specified  in  the 
offer,  he  shall  not  recover  costs,  but  shall  pay  to  the  defen- 
dant his  costs  accruing  subsequent  to  the  offer. 


RULE    XVII. 


Any  Justice  before  whom  an  action  is  brought,  may,  on 
sufficient  excuse  therefor  shown   on  the  affidavit  of  either 


CIVIL  PROCEDURE.  187 

party  or  any  person  for  him,  continue  such  action  from  time 
to  time  for  trial.  But  such  continuance  shall  not  exceed 
thirty  days. 

$505. — Execution— on  what  and  from  what  time  ^  lieu. 

Executions  issued  by  a  Justice,  which  must  be  directed 
to  any  constable  of  the  county,  shall  be  a  lien  on  the  goods 
and  chattels  of  the  defendant  named  therein,  from  the  levy 
thereof  only;  but  shall  not  be  levied  on  or  enforced  in  any 
manner  against  real  estate,  but  when  such  shall  be  made  a 
judgment  of  the  Superior  Court  as  is  provided  by  section  five 
hundred  and  three,  it  shall  be  capable  of  being  levied,  and 
collected  out  of  any  property  of  the  defendant,  in  execution, 
and  it  shall  be  a  lien  on  the  real  estate  of  said  defendant,  from 
the  time  when  it  becomes  a  judgment  of  the  Superior  Court. 

506. — Stay  of  execution— Security. 

The  party  praying  for  stay  of  execution  shall  within  ten 
days  after  the  trial,  give  sufficient  security,  approved  by  the 
Justice,  for  payment  of  the  judgment,  with  interest  thereon 
till  paid,  and' Cost;  and  the  acknowledgment  of  the  surety., 
entered  by  the  Justice  in  his  docket  and  signed  by  the 
surety,  shall  be  sufficient  to  bind  such  surety.  If  the  judg- 
ment be  not  discharged  at  the  time  to  which  execution  has 
been  stayed,  the  Justice  who  awarded  the  judgment  shall 
issue  execution  against  the  principal,  or  surety,  or  both. 

§507. — Former  judgment. 

On  the  trial  of  an  action  founded  on  a  former  judgment, 
the  judgment  itself  shall  be  evidence  of  the  debt,  subject  to 
such  payments  as  have  been  made. 

$508.— Application  for  re-hearing. 

When  a  judgment  has  been  rendered  by  a  Justice,  in  the 
absence  of  either  party,  and  when  such  absence  was  caused 
by  the  sickness,  excusable  mistake  or  neglect  of  the  party, 
such  absent  party,  his  agent  or  attorney  may,  within  ten 
days  after  the  date  of  such  judgment,  apply  for  relief  to  the 


188  THE  CODE  OF 

Justice,  who  awarded  the  same,  by  affidavit,  setting  forth 
the  facts,  which  affidavit  must  be  filed  by  the  Justice;  where- 
upon the  Justice,  if  he  deem  the  affidavit  sufficient,  shall 
open  the  case  for  re-consideration ;  and  to  this  end,  he  shall 
issue  a  summons,  directed  to  a  constable,  to  cause  the  adverse 
party,  together  with  the  witnesses  on  both  sides,  to  appear 
before  him  at  a  place  and  at  a  time,  not  exceeding  twenty 
days,  to  be  specified  in  the  summons;  when  the  complaint 
shall  be  re-heard,  and  the  same  proceedings  had  as  if  the 
case  had  never  been  acted  on.  If  execution  has  been  issued 
on  the  judgment,  the  Justice  shall  direct  an  order  to  the 
officer,  having  such  execution  in  his  hands,  commanding 
him  to  forbear  all  further  proceedings  thereon,  and  to  return 
the  same  to  the  Justice  forthwith. 

* 
$509.— Justices  judgment  removed  to  another  county,  how. 

Any  person,  who  may  desire  to  have  a  Justice's  judgment 
in  his  favor  removed  to  another  county  to  be  enforced 
against  the  goods  and  chattels  of  the  defendant,  must  obtain 
from  the  Justice  who  rendered  the  judgment  a  transcript 
thereof,  under  his  hand ;  and  must  further  procure  a  certi- 
ficate from  the  Clerk  of  the  Superior  Court  of  the  county 
where  the  judgment  was  rendered,  under  the  seal  of  his 
court,  that  the  Justice  who  gave  the  judgment  was,  at  the 
rendition  thereof,  a  Justice  of  said  county.  On  such  trans- 
cript of  the  judgment,  thus  certified,  any  Justice  in  any 
other  county,  may  award  execution  for  the  sum  therein 
expressed. 

§510.— Witnesses,  penalties,  &c. 

The  Justice,  on  application  of  either  party,  shall,  by  a 
subpoena  or  by  an  order  in  writing  on  the  process,  direct 
the  constable  or  other  officer  to  summon  witnesses  to  appear 
and  give  testimony,  at  the  time  and  place  appointed  for  the 
trial.  Each  witness,  failing  to  appear,  shall  forfeit  and  pay 
eight  dollars  to  the  party  at  whose  instance  he  was  sum- 
moned, and  shall  be,  further,  liable  to  such  party  for  all 
damage   sustained    by  non-attendance.      The    fine   herein 


CIVIL  PROCEDURE.  189 

imposed,  may  be  recovered  on  motion  before  the  Justice, 
•who  tried  the  action,  unless  the  witness,  on  a  notice  of  five 
days,  by  affidavit  or  other  proof,  show  sufficient  excuse  for 
his  failure  to  attend. 


CHAPTER  III. 


ARREST    AND    BAIL. 


§511. — Provisions  of  Code  of  Civil  Procedure  applicable. 

The  provisions  of  the  Code  of  Civil  Procedure,  Title  X, 
Chapter  I,  are  applicable,  except  as  herein  otherwise  directed, 
to  proceedings  in  Justice's  Courts  concerning  "Arrest  and 
Bail,"  substituting  the  words  "  Constable"  for  the  word 
"Sheriff"  and  the  words  "Justice  of  the  Peace"  for  the 
words  "Judge,  Court  or  Clerk"  whenever  they  occur  in  said 
chapter. 

$512. — Arrest,  iu  what  cases. 

The  defendant  may  be  arrested  in  the  following  cases : 

1.  When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt  or  obligation  for  which  the  action  is 
brought. 

2.  When  the  defendant  is  not  a  resident  of  the  State,  or 
is  about  to  remove  therefrom. 

3.  When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defrand  his 
creditors. 

t 
§513.— Order  for  arrest,  by  whom  made. 

An  order  for  the  arrest  of  the  defendant  must  be  obtained 
from  the  Justice  of  the  Peace  before  whom  the  action  is 
brought. 

§514.— Affidavit  to  obtain  order. 

The  order  may  be  made  where  it  appears  to  the  Justice 
of  the  Peace,   by  affidavit  of  the  plaintiff  or  of  any  other 


190  THE  CODE  OF 

person,  that  a  sufficient  cause  of  action  exists,  and  that,  the 
case  is  one  of  those  mentioned  in  section  five  hundred  and 
twelve,  Chapter  III,  of  this  Title. 

$515. — To  what  actions  this  chapter  applies. 

The  provisions  of  this  chapter  shall  apply  to  all  actions 
included  within  the  provisions  of  section  five  hundred  and 
twelve,  Chapter  III,  which  shall  be  commenced  after  the 
ratification  of  this  Title. 


CHAPTER  IV.       ■ 

ATTACHMENT. 

<j516.— Provisions  of  Code  of  Civil  Procednre  applicable. 

The  provisions  of  the  Code  of  Civil  Procedure,  Title  X. 
Chapter  IV.,  are  applicable  to  proceedings  by  Attachment 
before  Justices  of  the  Peace^  in  all  cases  founded  on  contract 
wherein  the  sum  demanded  does  not  exceed  two  hundred 
dollars,  and  where  the  title  to  real  estate  is  not  in  controversy. 


CHAPTER  V. 

JURY  TRIALS  IN  COURTS  OF  JUSTICES  OF  THE  PEACE. 

^517. — Jury  list  famished  to  each  Justice. 

The  Clerk  of  the  Board  of  Commissioners  shall  furnish, 
on  demand,  to  each  Justice  of  the  Peace  in  the  county,  a 
list  of  the  jurors  for  the  township  for  which  such  Justice  is 
elected  or  appointed. 

<>518.— Justice  to  keep  jury  box. 

Each  Justice  shall  keep  a  jury  box,  having  two  divisions 
marked  No.  1  and  2,  and  having  two  locks,  the  key  of  one 
to  be  kept  by  the  Justice  and  the  other  by  the  clerk  ol  the 
township  Board  of  Trustees. 


CIVIL  PROCEDURE.  191 

§519.— Xanies  of  jurors  to  be  deposited  iu  jury  box. 

Each  Justice  shall  cause  the  names  on  his  jury  list  to  be 
written  on  small  scrolls  of  paper  of  equal  size,  and  to  be 
placed  in  the  jury  box,  in  division  marked  No.  1,  until 
drawn  out  for  the  trial  of  an  issue  as  required  by  law. 

).j20.— When  trial  .by  jury  demanded  or  waived. 

A  trial  by  jury  must  be  demanded  at  the  time  of  joining 
the  issue  of  fact ;  and  if  neither  party  demand  at  such  time, 
a  jury,  they  shall  be  deemed  to  have  waived  a  trial  by  jury. 

§521.— Jury  drawn  and  trial  postponed. 

When  a  trial  by  jury  is  demanded,  the  Justice  shall 
immediately,  in  the  presence  of  the  parties,  proceed  to  draw 
the  names  of  twelve  jurors  from  division  marked  No.  1,  of 
the  jury  box;  and  the  the  trial  of  the  cause  shall  thereupon 
be  postponed  to  a  time  and  place  to'«be  fixed  by  the  Justice. 

§522.— Summoning  ot  the  jury. 

A  list  of  the  jurors  so  drawn  shall  be  immediately  deliv- 
ered by  the  Justice  to  any  constable,  with  an  order  endorsed 
thereon,  directing  him  to  summon  the  persons  named  in  the 
list,  to  appear  as  jurors,  at  the  time  and  place  fixed  for  the 
trial ;  and  it  is  the  duty  of  the  constable  to  proceed  forthwith 
to  summons  such  juaors,  or  so  many  of  them  as  can  be  found, 
according  to  the  order;  and  he  shall  make  return  thereof,  at 
the  time  and  place  appointed,  stating  in  his  return  the 
names  of  the  jurors  summoned  by  him. 

<;523.— Tbe  jury  for  the  trial  of  the  cause. 

At  the  time  and  place  appointed,  and  on  return  of  the 
order,  if  the  trial  be  not  further  adjourned,  and  if  adjourned, 
then  at  the  time  and  place  to  which  the  trial  shall  be 
adjourned,  the  Justice  shall  proceed,  in  the  presence  of  the 
parties,  to  draw  from  the  jurors  summoned  the  names  of  six 
persons  to  constitute  the  jury  for  the  trial  of  the  issue. 

^524.— Challenge. 

Each  party  shall  be  entitled  to  challenge,  peremptorily, 
two  of  the  persons  drawn  as  jurors. 


192'  THE  CODE  OF 

§525.— What  names  to  be  returned  to  the  jury  box  or  destroyed. 

The  scrolls  containing  the  names  of  jurors  not  summoned, 
if  any,  and  of  those  summoned,  but  not  drawn,  and  of  those 
drawn,  but  challenged  and  set  aside,  must  be  returned  by 
the  Justice  to  his  jury  box,  in  division  marked  No.  1 ;  pro- 
vided that  the  scrolls  containing  the  names  of  such  as  are  not 
legally  liable,  or  legally  qualified  to  serve  as" jurors,  shall  be 
destroyed. 

§526. — Tales  jnrors  may  be  summoned. 

If  a  competent  and  indifferent  jury  is  not  obtained  from 
the  twelve  jurors  drawn  as  specified  in  section  five  hundred 
and  twenty-two,  the  Justice  may  direct  others  to  be  sum- 
moned, from  the  bystanders,  sufficient  to  complete  the  jury. 

§527. — Jury  sworn  and  empennelled — verdict,  &c. 

The  jury  shall  be  sworn  and  empannelled  by  the  Justice, 
who  shall  record  their  verdict  in  his  docket  and  enter  a 
judgment  in  the  case  according  to  such  verdict. 

<>528.— New  trial— appeal. 

A  new  trial  is  not  allowed  in  a  Justice's  Court  in  any  case 
whatever;  but  either  party  dissatisfied  with  the  judgment 
in  such  court  may  appeal  therefrom  to  the  Superior  Court, 
as  prescribed  in  chapter  VI.  of  this  Act. 

§529. — Less  than  six  may  be  a  jury — when. 

Six  jurors  shall  constitute  a  jury  in  a  Justices'  court,  but, 
by  consent  of  both  parties,  a  less  number  may  constitute  it. 

§580. — Not  compelled  to  serve  out  of  township. 

No  person  is  compelled  to  serve  as  a  juror,  in  a  Justice's 
court,  out  of  his  own  township,  except  as  a  talesman. 

§531.— Jnrors  serving  on  trial,  &c. 

The  scrolls,  containing  the  names  of  the  jurors  who  serve 
on  the  trial  of  an  issue,  must  be  placed  in  the  jury  box  in 
division  marked  No.  2,  until  all  the  scrolls  in  division  marked 


CIVIL  PROCEDURE.  193 

No.  1,  have  been  drawn  out.  As  often  as  that  may  happen, 
the  whole  number  of  scrolls  shall  be  returned  to  division 
marked  No.  1,  to  be  drawn  out  as  in  the  first  instance. 

§538. — Deposit  of  jury  fees. 

Before  a  party  is  entitled  to  a  jury,  he  shall  deposit  with 
the  Justice  the  sum  of  three  dollars  for  jury  fees;  and  the 
Justice  shall  pay  to  all  persons  who  attend,  pursuant  to  the 
summons,  as  well  to  those  who  do  not  actually  serve  as  to 
those  who  do  serve,  twenty-five  cents  each,  to  be  included 
in  the  judgment  as  part  of  the  costs,  in  case  the  party 
demanding  the  jury  recover  judgment,  but  not  otherwise. 
The  Justice  shall  refund  to  the  party  the  fees  of  all  jurors 
who  do  not  attend. 

$583. — Adjournment  after  return  of  the  jury. 

No  adjournment  shall  be  granted  after  the  return  of  the 
jury,  unless  the  party  asking  the  same  shall,  in  addition  to 
the  other  conditions  imposed  on  him  by  law  or  by  the  Jus- 
tice, deposit  with  the  Justice,  to  be  immediately  paid  to  the 
jurors  attending,  the  sum  of  twenty-five  cents  each,  such 
amount  to  be  in  no  case  included  in  the  judgment,  as  part 
of  the  costs.  On  such  adjournment,  the  jurors  shall  attend 
at  the  time  and  place  appointed,  without  further  summons 
or  notice;  and  the  fees  for  the  jury,  deposited  with  the  Jus- 
tice according  to  the  preceding  section,  shall  remain  in  his 
hands,  until  the  jury  are  empanneled  on  the  trial,  aud  shall 
be  then  immediately  paid  to  the  jurors  or  to  the  party  enti- 
tled thereto. 


CHAPTER  VI 


APPEAL. 


$534. — Appeal— Execution. 

The   party  against  whom  judgment  is  rendered,  in  any 
civil  action  in  a  Justice's  Court,  may  appeal  to  the  Superior 


194  THE  CODE  OF 

Court  from  the  same  ;  but  uo  appeal  shall  prevent  the 
issuing  of  an  execution  on  such  judgment  or  work  a  stay 
thereof,  except  as  herein  afterwards  provided. 

$535 • — Appeal,  when  to  be  taken. 

The  appellant  shall,  within  ten  days  after  judgment,  serve 
a  notice  of  appeal,  stating  the  grounds  upon  which  the  appeal 
is  founded.  If  the  judgment  is  rendered  upon  process  not 
personally  served,  or  the  defendant  did  not  appear  and 
answer,  he  shall  have  fifteen  days,  after  personal  notice  of 
the  rendition  of  the  judgment,  to  serve  the  notice  of  appeal 
herein  provided  for. 

$538. — Notice  of  appeal,  on  whom  served. 

The  notice  of  appeal  must,  within  the  time  stated  in  the 
last  section,  be  served  on  the  Justice  who  rendered  the 
judgment,  if  living  and  within  the  county,  and  on  the  res- 
pondent or  his  agent  or  attorney,  who  appeared  for  him  on 
the  trial. 

§5.37.— Retnrn  to  the  appeal. 

The  Justice  shall,  thereupon,  within  ten  days  after  the 
service  of  the  notice  of  appeal  on  him,  make  a  return  to  the 
appellate  court  and  file  with  the  clerk  thereof,  the  papers, 
proceedings  and  judgment  in  the  case,  with  the  notice  of 
appeal  served  on  him.  He  may  be  compelled  to  make  such 
return  by  attachment.  But  no  Justice  shall  be  bound  to 
make  such  return  until  the  fees,  prescribed  by  law  for  this 
service,  be  paid  him.  The  fee,  so  paid,  shall  be  included  in 
the  costs,  in  case  the  judgment  appealed  from  is  reversed. 

§538. — Defective  retnrn. 

If  the  return  be  defective,  the  Judge  or  Clerk  of  the 
appellate  Court  may  direct  a  further  or  amended  return,  as 
often  as  may  be  necessary,  and  may  compel  a  compliance 
with  the  order  by  attachment. 


CIVIL  PROCEDURE.  195 

§539.— On  return  to 'the  appeal,  what  to  be  done. 

When  the  return  is  made,  the  Clerk  of  the  appellate  Court, 
if  the  judgment  exceed  twenty-five  dollars,  exclusive  of  cost, 
shall  docket  the  case  on  his  trial  docket,  for  a  new  trial  of 
the  whole  matter  at  the  ensuing  term  of  said  court.  If  the 
judgment  be  for  twenty-five  dollars  or  less,  exclusive  of  costs, 
he  shall  forthwith  transmit  the  papers,  proceedings  and 
judgment  to  the  Judge  of  the  District,  who  shall  hear  and 
determine  only  the  matters  of  law  therein,  and  send  his 
decision  thereon  to  the  clerk  of  the  appellate  court. 

•>10. — Appeal,  on  what  heard* 

The  appeal  shall,  in  all  cases,  be  heard  on  the  original 
papers,  and  no  copy  thereof  need  be  furnished  for  the  use  of 
the  appellate  court. 

§5*1. — Exeentlon  of  the  judgment,  bow  stayed. 

If  the  appellant  desire  a  stay  of  execution  of  the  judg- 
ment, he  may  apply,  at  any  time,  to  the  clerk  of  the  appel- 
late court  for  leave  to  give  the  undertaking,  as  provided  in 
the  next  section;  who  shall,  upon  the  undertaking  being 
given,  make  an  order  Jhat  all  proceedings  on  the  judgment 
be  stayed. 

•§542,— Same,  undertaking  to  he  given. 

The  undertaking  shall  be  in  writing,  executed  by  one  or 
more  sufficient  sureties,  to  be  approved  by  the  clerk  of  the 
appellate  court  making  the  order,  to  the  effect  that  if  judg- 
ment be  rendered,  against  the  appellant,  and  execution 
thereon  be  returned  unsatisfied,  in  whole  or  in  part,  the  sure- 
ties will  pay  the  amount  unsatisfied,  together  with  all  costs 
awarded  against  the  appellant. 

$543.— Same,  delivery  aid  service  of  order,  on  whom. 

A  delivery  of  a  certified  copy  of  the  order  mentioned  in 
section  five  hundred  and  forty-one  to  the  Justice  of  the  Peace, 
••shall  stay  the  issuing  of  the  execution  on  the  judgment;  if 


196  THE  CODE  OF 

it  have  been  issued,  the  service  of  a  certified  copy  of  such 
order  on  the  officer  holding  the  execution,  shall  stay  further 
proceedings  thereon.  A  certified  copy  of  such  order  shall 
also  be  served  on  the  respondent,  or  his  agent  or  attorney,, 
within  ten  days  after  the  making  thereof. 

§544.— Restitution. 

If  the  judgment  appealed  from,  or  any  part  thereof,  be 
paid  or  collected,  and  the  judgment  be  afterwards  reversed,, 
the  appellate  court  shall  order  the  amount  paid  or  collected 
to  be  restored,  with  interest  from  the  time  of  such  payment 
or  collection.  The  -order  may  be  obtained  on  proof  of  the 
facts  made  at  or  after  the  hearing  of  the  appeal,  on  a  previ- 
ous notice  of  six  days.  If  the  order  be  obtained  before  the 
judgment  of  reversal  is  entered,  the  amount  may  be  included 
in  the  judgment. 
$515. — Costs,  how  awarded. 

If  the  judgment  be  affirmed,  costs  shall  be  awarded  to  the- 
respondent;  if  reversed,  costs  shall  be  awarded  to  the  appel- 
lant; if  affirmed  in  part,  the  costs  may  be  awarded  to  either 
party  in  the  discretion  of  the  court. 


CHAPTER  VII. 

GENERAL  PROVISIONS  RESPECTING  JUSTICES  OF  THE  PEACE. 

^546. — Within  what  time  to  qualify. 

Every  person  elected  or  appointed  a  Justice  of  the  Peace., 
shall,  within  ten  days  after  such  election  or  appointment^ 
take  and  subscribe  the  prescribed  oath  of  office  before  the 
Clerk  of  the  Superior  Court;  which  oath  shall  be  filed  by 
the  Clerk  of  said  Court.  And  any  person  presuming  to  exe- 
cute the  office  of  a  Justice  of  the  Peace  without  qualifying 
as  herein  directed,  shal!  be  guilty  of  a  misdemeanor. 


CIVIL  PROCEDURE.  197 

■%M1. — Removal  oat  of  township  six  months  to  forfeit  office. 

When  any  Justice  of  the  Peace  removes  out  of  his  town- 
ship and  does  not  return  therein  for  the  space  of  six  months, 
he  shall  forfeit  and  lose  his  office ;  and  any  such  Justice  of 
the  Peace  presuming  to  act  thereafter,  contrary  to  the  pro- 
visions of  this  section,  unless  re-elected  or  re-appointed,  shall 
be  guilty  of  a  misdemeanor. 

$548. — Resignation. 

Justices  of  the  Peace  wishing  to  resign,  must  deliver  their 
letters  of  resignation  to  the  Clerk  of  the  Superior  Court,  who 
shall  file  the  same. 

$549.— May  issne  process  and  try  canses,  where. 

A  Justice  of  the  Peace  may  issue  a  summmons  or  other 
piocess  anywhere  in  his'county,  but  he  shall  not  be  com- 
pelled to  try  a  cause  out  of  the  township  for  which  he  was 
•elected  or  appointed. 

§550.— Office  nnder  the  United  States. 

Any  Justice  of  the  Peace  may  accept  a  civil  office  or 
appointment  of  trust  or  profit,  under  the  authority  of  the 
United  States,  the  duties  of  which  confine  him  to  the  county 
where  he  is  resident. 

-$551. — Punishment  on  conviction  of  infamous  crimes,  &c. 

Upon  the  conviction  of  any  Justice  of  the  Peace,  of  an 
infamous  crime,  of  corruption  and  malpractice  in  office,  he 
•shall  be  removed  from  office,  and  he  shall  be  disqualified 
from  holding  or  enjoying  any  office  of  honor,  trust  or  profit 
•under  this  State. 

§552.— Filing  dockets  with  Clerks. 

Each  Justice  of  the  Peace,  as  often  as  he  has  filled  his 
docket,  shall  file  the  same  with  the  clerk  of  the  Superior 
Court  for  his  county. 

§553. — Delivery  of  unfilled  docketto  successor. 

When  a  vacancy  exists,  from  any  cause,  in  the  office  of  a 
Justice  of  the  Peace,  whose  docket  is  not  filled,  or  when  such 


198  THE  CODE  OF 

Justice  goes  out  of  office  by  expiration  of  his  term,  sucb 
former  Justice,  if  living,  and  if  dead,  his  personal  represen- 
tative, shall  deliver  such  docket  and  all  official  papers  to  his 
successor,  who  is  authorized  to  hear  and  determine  any 
unfinished  cause  or  causes  on  said  docket,  in  the  same  man^ 
ner  as  if  such  cause  or  causes  had  been  originally  brough  t 
before  such  successor. 

$551. — Filing  and  delivery — how  enforced. 

The  duty  imposed  on  the  Justice,,  or  his  personal  repre- 
sentative  by  the  last  two  preceeding  sections  may  be- 
enforced,  on  ten  days'  notice  in  writing  to  such  Justice  or 
his  Representative;  by  attachment. 


TITLE    XXI. 


FEES. 


Chapter 

I. 

General  Provisions. 

(< 

II. 

Fees  of  Solicitors. 

H 

III. 

Fees  of  Clerks  of  Superior  Courts. 

1.  In  Civil  Actions.. 

2.  In  Criminal  Actions. 

(( 

IV. 

Fees  of  Registers  of  Deeds. 

t< 

V. 

Fees  of  Sheriffs. 

(' 

VI. 

Fees  of  Coroners. 

Ci 

VII. 

Fees  of  Justices  of  the  Peace. 

(( 

VIII. 

Fees  of  Constables. 

a 

IX. 

Fees  of  Jurors. 

a 

X. 

Fees  and  salaries  of  Clerks  of  the  Supreme  Court. 

CHAPTER  I. 


GENERAL    PROVISIONS. 


§555. — Fees  of  officers  by  whom  and  how  payable. 

The  several  officers  hereinafter  named,  shall  receive  the- 
fees  hereinafter  prescribed  for  them  respectively,  from  the- 


CIVIL  PROCEDURE.  199 

persons  for  whom,  or  at  whose  instance,  the  service  shall  be 
performed,  except^ersons  suing  as  paupers ;  and  no  officer 
shall  be  compelled  to  perform  any  service,  unless  his  fees  be 
paid  or  tendered.  The  said  officers  shall  receive  no  extra 
allowance  or  other, compensation  whatever,  unless  the  same 
shall  be  expressly  required  by  some  statute.  In  case  the 
service  shall  be  ordered  by  any  proper  officer  of  the  State, 
or  of  a  county,  for  the  benefit  of  the  State  or  county,  the 
fees  need  not  be  paid  in  advance ;  but  if  for  the  State,  shall 
be  paid  by  the  State,  as  other  claims  against  it  are ,  if  for  a 
county,  by  the  County  Commissioners,  out  of  the  county 
funds. 

§556i — Copy  sheet  de  fined. 

A  copy  sheet  shall  consist  of  one  hundred  words. 

§557. — Fees  on  returns  to  Secretary  of  State. 

All  officers  required  by  law  to  make  returns  to  the  Secre- 
tary of  State,  shall  receive  for  such  returns  five  cents  per 
copy  sheet,  to  be  audited  on  the  certificate  of  the  Secretary 
of  State,  and  paid  as  other  claims  against  the  State  are 
required  to  be. 

§558.— Officers  to  make  return  of  fees. 

Every  officer  authorized  to  receive  fees,  shall,  during  the 
first  week  in  September  in  every  year,  report  to  the  Secre- 
tary of  State,  according  to  a  form  to  be  prepared  "ami  fur- 
nished by  him,  a  sworn  statement  of  all  fees  received,  or 
which  might  have  been  received  by  him,  during  the  year 
next  preceeding  the  first  day  of  September  exclusive.  For 
this  report  no  fee  shall  be  allowed. 

§559* — Clerks  to  furnish  blank  writs. 

Clerks  of  Courts  shall  furnish  to  parties  printed  copies  of 
the  formal  parts  of  all  writs  required  to  be  issued  by  them? 
with  convenient  blank  spaces  for  the  insertion  of  written 
matter;  and  also  the  blank  forms  of  such  bonds  as  are 
required  to  be  taken  by  them. 


200  THE  CODE  OF 

§560. — Who  to  pay  costs  In  criminal  actions. 

If  a  defendant  be  acquitted,  or  judgment  against  him 
arrested,  the  costs,  including  the  fees  of  all  witnesses  sum- 
moned and  actually  examined  for  the  accused,  whom  the 
Judge  before  whom  the  trial  took  place,  shall  certify  to  have 
been  necessary  or  proper  for  his  defence,  shall  be  paid  by 
the  prosecutor,  if  any  be  marked  on  the  bill,  unless  the 
Judge  shall  certify  that  there  was  reasonable  ground  for  the 
prosecution,  and  that  it  was  required  by  the  public  interest 
If  there  be  no  prosecutor,  or  if  the  Judge  shall  certify  as  afore- 
said, the  costs  shall  be  paid  by  the  county  in  which  the  bill 
was  found. 

$561.— -Half  fees  If  convict  insolvent. 

The  costs  in  criminal  actions  shall  in  all  cases  be  paid  by 
the  person  convicted,  it  he  be  able;  but  if  he  be  not  able, 
the  county  where  the  bill  was  found  shall  pay  the  costs  of 
the  prosecution  only;  and  in  that  case  the  public  officers 
shall  receive  only  half  the  fees  otherwise  allowed. 

$562.— How  fees  of  offieers  received. 

If  any  officer  to  whom  fees  are  payable  by  any  person, 
shall  fail  to  receive  them  at  the  time  the  service  is  performed 
he  may  have  judgment  therefor  on  motion  to  the  court  in 
which  the  action  is  or  was  pending,  upon  twenty  days 
notice  to  the  person  to  be  charged,  at  any  time  within  one 
year  after  the  determination  of  the  action  in  which  the  same 
was  performed,  if  the  motion  for  judgment  be  in  behalf  of 
the  Clerk  of  the  Superior  Court,  it  shall  be  made  to  the 
Judge  of  the  Court  in  or  out  of  terms. 


CHAPTER  II. 

FEES    OP    SOLICITORS. 

§563. — When  to  receive  fees — salary  • 

The  Solicitor  shall  receive  no  fees,  except  in  case  of  judg- 
ment rendered  against  the  accused;  unless  in  cases  where, 


CIVIL  PKOCEDURE.  201 

upon  oonviction,  the  punishment  might  have  been  capital  or 
confinement  in  the  penitentiary  at  hard  labor  for-  six  months 
or  upwards,  and  the  Judge  before  whom  the  action  was 
tried,  shall  certify,  immediately  after  the  trial,  that  there  was 
probable  ground  for  the  prosecution,  andf  that  the  case  has 
been  conducted  fairly  and  with  due  diligence.  In  such  case 
he  shall  receive  one-half  of  his  fees  from  the  county  in 
which  the  bill  was  found,  and  he  shall  receive  forty  dollars 
additional  for  every  attendance  on  the  session  of  his  Court. 

§564. — Solicitor's  fees — for  what. 

The  Solicitors  shall  receive  the  following  fees : 

1.  On  every  conviction  for  murder,  twenty  dollars. 

2.  On  every  conviction  where,  by  law  the  punishment 
may  be  hard  labor  in  a  Penitentiary  for  one  year  or  over, 
ten  dollars. 

3.  On  conviction  on  any  other  indictment,  four  dollars. 

4.  On  final  judgment  against  a  defaulting  witness  or  juror 
where  no  issue  is  joined,  two  dollars. 

5.  On  such  a  judgment  when  contested,  four  dollars. 

6.  Judgment  on  undertaking  of  baila  or  recognizance,  if 
uncontested,  two  dollars. 

7.  On  the  same  if  contested,  four  dollars. 

8.  On  application  to  renew  bond  to  keep  the  peace,  if 
granted,  one  dollar. 

9.  On  an  issue  in  bastardy — found  against  the  putative 
father,  four  dollars. 


CHAPTER  III. 

THE  FEES  OF  CLERKS  OP  THE  SUPERIOR  COURTS. 

$565. — What  fees  and  for  what. 

The  Clerks  of  the  Superior  Court  shall  be  entitled  to  the 
following  fees: 


202  THE  CODE  OF 

I.— IN  CIVIL  CASES. 

1.  Furnishing  blank  writ  of  summons  or  other  writ  or 
process  required  to  be  issued  by  him  and  taking  a  bond  from 
the  plaintiff  as  security  for  costs  or  receiving  a  deposit  from 
plaintiff  and  giving  a  certificate  to  him  and  the  defendant, 
fifty  cents. 

2.  Docketing  summons,  five  cents. 

3.  Recording  a  return  of  a  sheriff  or  other  ministerial  offi- 
cer, ten  cents. 

4.  Receiving,  filing,  and  noting  on  the  docket,  any  plead- 
ing or  demurrer,  and  delivering  copies  filed,  to  the  parties  to 
whom  addressed,  ten  cents. 

5.  Order  enlarging,  or  refusing  to  enlarge,  time  for  plead- 
ing, or  for  any  other  act  where  authorized,  fifty  cents. 

G.  Making  order  of  publication  where  allowed,  fifteen 
cents. 

7.  Entering  judgment  against  either  party  in  default  of  a 
plea,  one  dollar. 

8.  Judgment  on  any  question  authorized  to  be  decided  by 
him,  if  there  be  no  appeal  to  the  Judge,  or  if  the  judgment 
of  the  clerk  be  confirmed  on  the  appeal,  one  dollar. 

9.  Preparing  statement  of  case  on  appeal  from  his  decis- 
ion to  the  Judge  if  the  decision  shall  be  confirmed,  one 
dollar. 

10.  Transcript  of  record  for  Judge  on  issue  of  law  joined 
on  the  pleadings,  per  copy  sheet,  ten  cents. 

11.  Acknowledging  receipt  of  decision  of  Judge,  and 
notifying  each  attorney  thereof,  ten  cents. 

12.  Taking  an  affidavit  except  to  a  witness  or  juror's  ticket 
of  attendance,  fifteen  cents. 

13.  Taking  affidavit  to  witness  or  juror's  ticket,  ten  cents. 

14.  Transcript  of  case  and  record  for  Supreme  Court,  per 
copy  sheet,  ten  cents. 

15.  Mailing  transcript,  post  paid,  fifteen  cents. 

16.  Docketing  anyjudgment  on  Execution  docket,  twenty- 
five  cents. 

17.  Affixing  seal  of  court  when  necessary,  twenty-five 
cents. 


CIVIL  PROCEDURE.  20a 

18.  Entering  on  record  any  order  or  judgment  of  the 
Judge,  on' a  matter  which  he  has  jurisdiction  to  decide  out 
of  term,  if  not  more  than  one  copy  sheet,  twenty-five  cents. 

If  more  than  one  copy  sheet,  for  every  copy  sheet  over  the 
first,  ten  cents. 

19.  Entering  on  the  docket  a  brief  of  any  complaint,  plea,, 
demurrer  or  motion,  five  cents. 

20.  Entering  general  verdict,  five  cents. 

21.  Enteiing  special  verdict  by  copy  sheet,  ten  cents. 

22.  Entering  appeal  taken,  five  cents. 

23.  Issuing  subpoena  for  witnesses,  each  name,  ten  cents. 

24.  Swearing  a  witness,  five  cents. 

25.  Copy  of  any  record  or  writing  in  his  office,  per  copy 
sheet,  ten  cents. 

26.  Probate  or  acknowledgment  of  a  deed  or  writing  of 
any  sort  authorized  to  be  proved,  (except  where  the  private 
examination  of  a  married  woman  is  taken,  for  each  grantor 
therein,  fifty  cents. 

27.  Probate  or  acknowledgment  of  deed  or  other  writing 
and  taking  private  examination  of  married  women,  with 
certificate  thereof,  one  dollar. 

28.  Probate  of  a  will  in  common  form,  with  certificate  and 
issuing,  letters  testamentary,  one  dollar. 

29.  Recording  will,  return  or  report  of  executor,  adminis- 
trator, guardian  or  other  trustee  required  to  be  recorded  ;: 
per  copy  sheet,  ten  cents. 

30.  Grant  of  letters  of  administration  of  any  sort,  and 
taking  bond  of  administration,  one  dollar. 

31.  Every  notice  required  to  be  issued  by  Clerk,  ten  cents. 

32.  Grant  of  guardianship,  including  taking  of  bond;  for 
each  minor,  fifty  cents. 

33.  Apprenticing  infant,  including  indenture,  fifty  cents. 

34.  Entering  caveat  on  contested  will,  twenty  cents. 

35.  Recording  articles  of  agreement  of  proposed  corpora- 
tion, including  all  services,  two  dollars. 

36.  Issuing  commission  of  any  sort,  fifty  cents. 

37.  Entering  return  to  commission  and  order  for  registra- 
tion of  deed,  ten  cents. 


204  THE   CODE  OF       • 

38.  Auditing  account  of  executor,  administrator,  guar- 
dian, or  other  trustee,  required  to  return  accounts,  one  per 
cent,  on  the  nett  amount  returned,  if  not  over  three  hundred 
dollars ;  three  fourths  of  one  per  cent,  if  over  three  hundred 
and  not  over  one  thousand  dollars;  one-half  of  one  per 
cent,  if  over  one  thousand  and  not  over  twenty  thousand 
dollars;  one  sixth  of  one  per  cent,  if  over  twenty  thousand 
dollars. 

39.  Justification  of  sureties,  fifty  cents. 

40.  Issuing  marriage  license  and  making  the  record  re- 
quired thereof,  fifty  cents. 

41.  Entry  of  birth  or  death  when  required  to  be  made, 
five  cents. 

II.— ES  CRIMINAL  ACTIONS. 

42.  Issuing  capias — for  each  person  to  be  arrested,  fifty 
'ce'nts. 

43.  Docketing  action,  and  entering  return,  ten  cents. 

44.  Taking  a  recognizance,  ten  cents. 

45.  Issuing  subpoena — for  each  witness,  ten  cents. 

46.  Entering  judgment  against  a  defaulting  juror  or  wit- 
ness or  on  a  bail  bond  or  recognizance,  fifty  cents. 

47.  Entering  verdict  and  judgment,  one  dollar. 

48.  Issuing  execution,  twenty-five  cents. 

49.  Justification  of  bail  or  sureties  to  an  appeal,  fifty 
•cents 

50.  Affidavit  except  to  witness  or  juror's  ticket  twenty- 
oents. 

51.  Affidavit  to  witness  or  juror's  ticket,  ten  cents. 

52.  Affixing  seal  when  necessary,  twenty-five  cents. 

53.  Transcript  on  appeal — as  in  civil  cases. 

54.  Mailing  transcript  as  in  civil  cases. 


CIVIL  PROCEDURE.  205 


CHAPTER  IV. 

FEES    OF   REGISTERS    OF    DEEDS. 

$566.— Specification. 

The  Register  of  Deeds  shall  be  entitled  to  the  following 
prescribed  fees : 

1.  Registering  any  deed  or  other  writing  authorized  to 
be  registered  or  recorded  by  him,  with  certificate  of  probate 
or  acknowledgment  and  private  examination  of  a  married 
woman  if  any,  if  not  more  than  one  copy  sheet,-  one  dollar. 

2.  For  every  copy  sheet  more  than  one,  three  cents. 

3.  For  a  copy  of  any  record  or  paper  in  his  office ;  per 
copy  sheet,  three  cents. 

4.  For  issuing  each  notice  or  order  required  by  the  county 
Commissioners,  including  subpoenas  for  witnesses;  for  each 
name,  fifteen  cents. 

5.  Recording  each  order  of  Commissioners  if  not  over 
one  copy  sheet,  twenty  cents. 

6.  If  over  one  copy  sheet,  for  every  one  over,  three  cents. 

7.  Making  out  tax  list,  for  each  name  on  each  copy 
required  to  be  made,  three  cents. 


CHAPTER  V. 


FEES  OF  SHERIFFS. 


§567.— Specification. 

The  Sheriffs  shall  be  entitled  to  the  following  fees  for  the 
acts  herein  specified : 

1.  Executing  summons,  or  any  other  writ  or  notice,  simply 
by  delivering  a  copy  to  the  party  or  his  attorney,  sixty 
cents. 


206     •  THE  CODE  OF 

2.  Per  mile,  travelling  from  Court  House  of  his  county  to 
place  of  service,  if  out  of  the  county  town,  and  where  imme- 
diate service  is  not  required,  five  cents. 

3.  As  above,  where  immediate  service  is  required,  ten 
cents. 

4.  Arrest  of  a  defendant  in  a  civil  action  and  taking  bail, 
including  attendance  to  justify,  and  all  services  connected 
therewith,  two  dollars. 

5.  Arrest  of  person  indicted,  including  all  service  con- 
nected with  the  taking  and  justification  of  bail,  one  dollar. 

6.  Imprisonment  of  any  person  in  a  civil  or  criminal  action, 
fifty  cents;  and  release  from  prison,  thirty  cents. 

7.  Executing  subpoena  on  a  witness  without  mileage, 
twenty-five  cents. 

8.  Conveying  a  prisoner  to  jail,  if  one  mile  or  less,  fifty 
cents. 

9.  If  over  one  mile,  then  per  mile  beyond  the  first,  for 
prisoner,  sheriff  and  guard,  if  any  necessary,  and  approved 
by  County  Commissioners — per  mile  for  each,  ten  cents. 

10.  Expense  of  guard  and  all  other  expenses  of  convey- 
ing prisoner  to  jail,  or  from  one  jail  to  another  for  any  pur- 
pose, or  to  any  place  of  punishment — whatever  may  be 
allowed  by  the  Commissioners  of  the  county  in  which  the 
indictment  was  issued. 

11.  Feeding  prisoners  in  the  county  jail  per  day — to  be 
fixed  by  the  Commissioners  of  the  county. 

12.  Providing  prisoners  in  county  jail  with  suitable  beds, 
bed  clothing,  other  clothing  and  fuel,  and  keeping  the  prison 
and  grounds  cleanly — whatever  shall  be  allowed  by  the  Com- 
missioners of  the  county. 

13.  Collecting  fine  and  costs  from  convict,  two  and  a  half 
per  cent,  on  the  amount  collected. 

14.  Collecting  executions  for  money  in  civil  actions — two 
and  a  half  per  cent,  on  the  amount  collected. 

15.  Advertising  a  sale  of  property  under  execution,  at  each 
public  place  required,  fifteen  cents. 

16.  Seizing  pecific  property  under  order  of  a  court,  or 
Judge,  or  executing  any  other  order  of  a  court  or  Judge  not 
specially  provided  for;  to  be  allowed  by  the  Judge. 


CIVIL  PROCEDURE.  207 

17.  Taxing  any  official  bond,  including  furnishing  the 
blank,  fifty  cents. 

18.  The  actual  expense  of  keeping  all  property  seized 
under  process  or  order  of  court;  to  be  allowed  by  the  court. 

19.  A  capital  execution,  including  the  burial  of  the  body, 
twenty-five  dollars. 

20.  Summoning  a  grand  or  petit  jury  for  each  man  sum- 
moned, thirty  cents. 

21.  Serving  any  writ  or  other  process,  with  the  aid  of  the 
county,  or  arresting  any  criminal,  three  dollars,  and  all 
necessary  expenses  incurred  thereby. 

22.  All  just  fees  paid  to  any  printer  for  any  advertisement 
required  to  be  printed  by  the  sheriff.        •• 

23.  Bringing  up  a  prisoner  upon  a  habeas  corpus  to  testify 
or  answer  to  any  court  or  before  a  Judge,  one  dollar,  and  all 
necessary  expenses. 


CHAPTER  ,VI. 

FEES  OF  CORONERS. 

§568t— Specification. 

Coroners  shall  be  entitled  to  fees  as  follows: 

1.  Coroners  shall  receive  the  same  fees  as  are  or  shall  be 
allowed  sheriffs  in  similar  cases. 

2.  For  holding  an  inquest  over^dead  body,  inclitding  the 
summoning  the  jury  and  return  in  glkfe  verdict — if  finished 
in  one  day,  ten  dollars. 

3.  For  every  additional  day  occupied  in  the  investigation 
of  the  case,  five  dollars. 

4.  For  summoning  each  witness  on  inquest,  fifteen  cents. 

5.  For  burying  a  pauper  over  whom  an  inquest  has  been 
held,  to  be  paid  by  the  county. 

6.  The  fees  in  cases  numbered  one,  two,  and  three  shall 
be  paid  by  the  county  if  the  deceased  be  a  pauper,  otherwise 
by  his  personal  representatives. 


208  THE  CODE  OF 

CHAPTER  VII. 


FEES    OF   JUSTICES   OF   THE    PEACE. 

§369.— Specification. 

Justices  of  the  Peace  shall  be  entitled  to  receive  the  fol- 
lowing fees: 

For  attachment  or  transcript  of  a  judgment,  twenty-five 
cents. 

For  summons,  fifteen  cents. 

For  adjournment  or  continuance,  ten  cents. 

For  subpoena  or  order  for  witnesses  including  all  the 
names  inserted  therein,  twenty-five  cents. 

For  filing  every  paper^necessary  to  be  filed,  five  cents. 

For  trial  of  an^issue,  fifty  cents. 

For  entering  judgment,  twenty -five  cents. 

For  taking  affidavit,  bonder  undertaking,  five  cents. 

For  drawing  or  taking  affidavit,  bond  or  undertaking,  per 
copy  sheet,  ten  cents. 

For  receiving  and  entering  verdict  of  jury,  twenty-five 
cents. 

For  execution,  twenty-five  cents. 

For  renewal  of  execution,  ten  cents. 

For  making  a  return  to  an  appeal,  one  dollar. 

For  order  of  an  arrest  in  a  civil  action,  twenty-five  cents. 

For  warrant  for  apprehension  of  any  person  charged  with 
crime,  or  with  being  the  father  of  a  bastard,  fifty  cents. 

For  entering  judgment  for  a  contempt,  fifty-cents. 

For  execution  of  such  judgment,  twenty-five  cents. 

For  warrant  of  commitment  for  any  cause,  twenty-five 
cents. 

For  order  for  a  commission    to  take  testimony,  fifty  cents. 

For  taking  deposisions  on  an  order  or  commission  issued 
by  some  court,  per  copy  sheet,  ten  cents. 

For  making  necessary  return  and  certificate  thereto,  fifty 
cents. 


CIVIL  PROCEDURE.  209 

In  civil  actions  where  the  sum  recovered  before  the  Justice 
exceeds  one  hundred  dollars,  the  above  fees  shall  be  increased 
fifty  per  cent. 


CHAPTER  VIII. 


FEES    OF    CONSTABLES. 


£570. — Like  those  of  sheriff. 

The  fees  of  constables  shall  be   the  same  as   those  for 
sheriff,  for  the  like  services. 


CHAPTER  IX. 


FEES    OF    JURORS. 


§571. — Pay  and  mileage. 

1.  Jurors  to  the  Superior  Courts,  per  day,  what  shall  be 
allowed  by  the  County  Commissioners  of  the  County,  not 
exceeding  two  dollars  and  fifty  cents. 

2.  Per  mile  of  travel  coming  to,  and  returning  from  court, 
five  cents. 

3.  The  same  pay  and  mileage  shall  be  allowed  to  special 
jurors  and  the  same  pay,  without  mileage,  to  tales  jurors. 


CHAPTER  X. 

FEES  AND  SALARIES  OF  CLERKS  OF  THE  SUPREME  COURT. 

§572. — To  remain  as  heretofore. 

The  salary  and  fees  of  the  Clerk  of  the  Supreme   Court 

shall   be  as  provided   by  section  twenty-five,   chapter  one 

hundred  and  two,  of  the  Revised  Code  of  this  State. 
14 


210  THE  CODE  OF 

TITLE    XXII. 

OF    THE    PRINTING    OF    THE    CODE    OF   CIVIL    PROCEDURE. 

§573. — Code  as  printed  under  supervision  of  Commissioners,  evidence  of  the  law. 
The  Cornmississiouers  appointed,  "  to  prepare  a  Code  of 
Practice  and  Procedure  in  the  different  courts  of  this 
State,"  shall  cause  to  be  printed  under  their  supervision,  four 
thousand  copies  of  this,  act,  entitled  "  The  Code  of  Civil 
Procedure,"  including  the  Act  concerning  the  jurisdiction  of 
Justices  of  the  Peace;  the  Act  concerning  the  powers  and 
duties  of  Clerks  of  the  Superior  Courts  as  Judges  of  Pro- 
bate, and  and  the  Act  fixing  the  fees  of  the  clerk,  sheriff 
and  other  public  officers,  which  are  parts  of  said  Code,  and 
the  copies  thus  printed,  shall  be  received  as  evidence  of  the 
law  before  all  tribunals,  and  in  all  places,  in  the  same 
manner,  and  with  the  same  effect  as  the  original  in  the  office 
of  the  Secretary  of  State. 

§574. — Copies,  how  distributed. 

The  said  copies  shall  be  distributed  by  the  Secretary  of 
State,  as  follows : 

1.  To  the  library  of  the  Congress  of  the  United  States; 
five  copies. 

2.  To  each  of  the  several   State  and  territories;  three. 

3.  To  the  library  of  the  University  of  North  Carolina; 
three. 

4.  To  the  Governor  and  the  members  of  his  council,  for 
the  use  of  their  respective  offices;  each  two  copies. 

5.  To  each  member  of  the  General  Assembly,  to  each 
Justice  of  the  Supreme  Court,  to  each  Judge  of  the  Superior 
Court,  to  each  Clerk  of  the  Superior  Court;  one  copy. 

6.  To  each  Commissioner  of  the  Code;  five  copies. 

7.  To  each  Justice  of  the  Peace ;  one  copy. 

8.  Three  hundred  shall  be  exposed  for  sale,  at  a  price  not 
exceeding' cost,' to  be  fixed  by  the  Secretary  of  State,  for  the 
.benefit  of  the  State. 


CIVIL  PROCEDURE.  211 

9.  The  residue,  and  the  copies  which  shall  remain  unsold 
at  the  end  of  two  years,  shall  be  deposited  in  the  library  of 
t  he  State. 


TITLE   XXIII. 

RATIFICATION  OF  STATUTES  COMPOSING  THIS  CODE. 

$575.— Date  of  Ratification. 

The  various  Statutes  of  which  the  Code  of  Civil  Procedure 
is  composed,  take  effect  from  the  date  of  ratification,  as 
follows : 

I. — The  first  part  of  the  Code  of  Civil  Procedure  embrac- 
ing Titles  I,  III,  IV,  V,  VI,  VII,  and  the  greater  part  of 
Title  VIII,  of  this  Code,  was  ratified  on  the  eighteenth  day 
of  August,  A.  D.,  1868  ■    ' 

II. — An  Act  entitled,  "  An  Act  concerning  the  powers  and 
duties  of  Clerks  of  the  Superior  Court,"  constituting  Title  II, 
and  Chapter  V,  of  Title  VIII,Nof  the  Code  of  Civil  Procedure, 
was  ratified  on  the  fourteenth  day  of  August,  A.  D.,  1868. 

III. — The  second  part  of  the  Code  of  Civil  Procedure 
embracing  Titles  IX  to  XVIII  inclusive  and  Title  XXII,  was 
ratified  on  the  twenty-fourth  clay  of  August,  A.  D.,  1868. 

IV. — An  Act  entitled,  "An  Act  concerning  the  powers 
and  duties  of  Clerks  of  the  Superior  Courts,  as  Judges  ot 
Probate,"  constituting  Title  XIX,  of  the  Code  of  Civil  Pro- 
cedure, was  ratified  on  the  nineteenth  day  of  August,  A.  D., 
1868. 

V. — An  Act  in  relation  to  the  courts  of  Justices  of  the 
Peace,  being  Title  XX,  of  the  Code  of  Civil  Procedure,  was 
ratified  on  the  twenty-fourth  day  of  August,  A.  D.,  1868. 

VI. — An  Act  in  relation  to  the  fees  of  certain  officers, 
being  Title  XXI,  of  the  Code  of  Civil  Procedure,  was  ratified 
on  the  twenty-fourth  day  of  August,  A.  D.,  1868. 


Ordinance  of  the  Convention. 


AN    ORDINANCE    OF   THE    CONVENTION    OF     1865    AND    1866,    ENTITLED 
"AN    ORDINANCE  RESPECTING    THE  JURISDICTION    OF    THE  COURTS   OF 

THIS  STATE," RATIFIED  JUNE  23,  1866,  AMENDED  ANDRE-RATIFIED 

BY    THE    CONVENTION    OF    1868,    MARCH    14,  1868. 

[Given  as  Amended.] 

[Sections  one  and  two  are  part  of  the  amendments  of  1808.] 
Section  1.  Be  it  ordained  by  the  people  of  North  Carolina 
in  Convention  assembled,  That  sections  one  and  two  of  the 
Ordinance  of  the  Convention  adopted  June  23d,  1866,  en- 
titled "  An  Ordinance  to  change  the  jurisdiction  of  the 
courts  and  the  rules  of  pleading  therein,"  be  and  are  hereby, 
repealed. 

Sec.  2.  Be  it  further  ordained,  That  section  three  of  the 
above  entitled  ordinance  be  amended  to  read  as  follows : 
Sec.  3.  That  all  actions  of  debt,  covenant,  assumpsit  and 
account  now  pending  in  the  Superior  Courts  shall  be  con- 
tinued to  Spring  Term,  1869,  and  that  the  several  Superior 
Courts  at  the  Spring  Term  thereof  only,  unless  otherwise 
^erein  provided,  shall  have  exclusive  original  jurisdiction 
of  all  such  causes  of  action  except  where  jurisdiction  has 
been  or  shall  be  given  to  a  Justice  of  the  Peace  by  the 
Constitution  or  laws  of  North  Carolina.  Should  the  defen- 
dant at  the  Spring  Term,  1869,  on  writs  which  shall  be 
returned  to  that  Term  or  in  any  suit,  for  the  above  causes 
of  action  then  pending  in  the  Superior  Court,  pay  or  confess 
j  udgment  to  the  plaintiff  for  one-tenth  of  the  debt,  and 
demand  principal  and  interest  and  all  costs  to  that  time,  he 
shall  be  allowed  until  next  Spring  Term  to  plead.  At  the 
said  Spring  Term  should  the  defendant  pay  to  the  plaintiff 


214  ORDINANCE. 

or  confess  judgment  for  one-fifth  of  the  residue  of  the  said 
debt  or  demand  and  cost,  he  shall  be  allowed  until  the  suc- 
ceeding Spring  Term  to  plead.  At  the  said  Spring  Term 
should-  the  defendant  pay  to  the  plaintiff  or  confess  judg- 
ment for  one-half  of  the  residue  of  the  debt  or  demand,  he 
shall  be  allowed  until  the  succeeding  Spring  Term  to  plead. 
At  the  said  Spring  Term  the  plaintiff  shall  have  judgment 
for  the  residue  of  his  debt  or  demand:  Provided  however,. 
That  the  plaintiff,  if  required,  shall  file  his  debt  or  demand 
in  writing,  and  if  the  defendant  shall  make  oath  that  the 
whole  or  any  part  thereof  is  not  justly  due,  or  that  he  has  a 
counter  demand,  all  of  which  shall  be  particularly  set  forth 
by  affidavit,  then  the  defendant  shall  only  pay  the  install- 
ment required  of  what  he  admits  to  be  due,  and  the  court 
shall  order  a  jury  at  the  same  or  some  subsequent  term  to 
try  the  matters  in  dispute  between  the  parties,  and  at  the 
next  Spring  Term  the  defendant  shall  be  allowed  time  to 
plead  only  upon  paying  or  confessing  judgment  for  one-fifth 
of  the  residue  of  the  admitted  amount,  and  whatever  the 
jury  finds  him  indebted  over  and  above  the  same :  Provided 
further,  That  should  the  defendant  fail  to  pay  or  confess 
judgment  for  the  first  or  any  subsequent  installment,  then 
and  in  that  case  the  plaintiff  shall  be  entitled  to  proceed  to 
judgment  and  execution  for  such  installment,  unless  the 
defendant  shall  put  in  pleas,  in  which  case  the  suit  shall 
proceed  according  to  the  course  of  the  court  in  1860 :  Pro- 
vided further.  That  by  consent  of  the  plaintiff  the  defen- 
dant at  any  term  of  the  court  may  confess  judgment  for  a 
stipulated  sum  in  full  and  final  discharge  of  all  further 
demand  or  liability  upon  such  claim. 

[Sections  three  to  eight  inclusive  are  of  the  original  Ordinance  un- 
amended.] 

Sec.  3.  Be  it  further  ordained,  That  all  writs  in  actions  of 
debt,  convenant,  assumpsit  or  account,  issued  to  Fall  Term 
of  the  Superior  Courts,  shall  be  returned  by  the  Sheriffs  to 
Spring  Term,  1867,  and  all  actions  of  debt,  convenant, 
assumpsit  or  account,  now  pending  in  the  Superior  Courts, 
shall  be  continued  to  Spring  Term,  and  if  the  defendant  has 


ORDINANCE.  215 

entered  his  plea,  he  shall  be  allowed  to  withdraw  the  same, 
and  take  the  benefits  of  section  three,  of  this  ordinance. 

Sec.  4:  Be  it  further  ordained,  That  dormant  judgments 

shall  only  be  revived  by  actions  of  debts,  and  every  scire 

facias  to  revive  a  judgment  shall  be  dismissed  on  motion : 

Provided,  That  those  now  issued  shall  be  dismissed  at  the 

cost  of  the  debtor. 

Sec.  5.  Beit  further  ordained,  That  the  Clerks  of  the  several 
County  Courts  shall  transfer  all  actions  of  debt,  convenant, 
assumpsit  or  account,  now  pending  in  their  respective 
Courts,  to  the  Spring  Term,  1867,  of  the  Superior  Courts,  and 
the  said  Spring  Term  shall  be  deemed  the  return  term 
thereof,  and  the  said  actions  shall  stand  as  if  originally  insti- 
tuted in  that  Court. 

Sec  6.  Be  it  further  ordained,  That  the  Clerks  of  the 
several  County  Courts,  if  requested  to  do  so  by  the  plaintiffs, 
sixty  days  before  the  Spring  Term,  j[18G7,  of  the  Superior 
Courts,  shall  transmit  to  said  Spring  Terms  certified  copies 
of  the  judgments  in  actions  of  debt,  convenant,  assumpsit  or 
account  entered  on  the  dockets  of  their  Courts,  together 
with  the  writs  of  fieri  facias  or  venditioni  exponas  issued 
thereon,  and  shall  issue  notices  thereof  to  the  defendants, 
which  notices  shall  be  served  at  least  thirty  days  before  said 
Superior  Courts.  At  the  Spring  Terms  aforesaid,  the  Courts 
shall,  on  motion,  order  the  said  judgments  to  be  entered  on 
the  minute  dockets:  Provided,  The  same  were  not  dormant 
when  transmitted  from  the  County  Courts;  and  on  8uch 
entries  being  made,  the  said  judgments  shall  be  taken  and 
held  to  be  judgments  of  the  Superior  Courts  and  writs  of 
fieri  facias  and  venditioni  exponas  may  issue,  as  provided  in 
section  tenth  of  this  Ordinance,  following  the  writs  trans- 
mitted from  the  County  Courts  and  preserving  the  liens,  as 
if  issued  by  the  same  Court. 

Sec.  7.  Be  it  further  ordained,  That  the  Sheriff  in  each 
county  shall  return  all  writs  of  fieri  facias  and  venditioni 
exponas  issued  from  the  County  Court  on  judgments  in 
actions  of  debt,  convenant,  assumpsit  or  account  to  the  nest 


216  ORDINANCE. 

term  ol  said  Court,  without  sale ;  and  shall  return  all  writs 
of  fi.  fa.  or  venditioni  exponas  issued  on  similar  judgments 
from  the  Superior  Court  or  decrees  of  the  Court  of  Equity 
on  money  demands  to  Spring  Term,  1867,  without  sale. 

Sec.  8.  Be  it  further  ordained,  That  no  writs  of  fi.  fa.  or 
venditioni  exponas  on  judgments  in  actions  of  debt,  convers- 
ant, assumpsit  or  account  shall  hereafter  issue  from  the 
County  Courts,  nor  shall  said  writs  on  such  judgments  issue 
from  ov  to  the  Fall  Terms  of  the  Superior  Courts,  except  in 
cases  where  defendant  fails  to  comply  with  the  provisions 
of  this  Ordinance,  and  it  is  directed  that  plaintiff  may  pro- 
ceed according  to  the  regular  course  of  the  Court. 

[Sections  nine  and  ten  are  part  of  the  amending-  Ordinance  of  1868.] 

Sec.  9.  Be  it  further  ordained,  that  section  ten  of  the  alove 
recited  act  shall  be  amended  to  read  as  follotcs :  That  execu- 
tions on  judgements  in  actions  of  debt",  assumpsit,  covenant 
or  account,  or  decrees  for  money  demands  in  equity,  which 
have  been,  or  shall  be  issued  on  judgments  or  decrees  here- 
tofore obtained,  shall  be  levied  on  the  property  of  the  defen- 
dant and  returned  without  sale:  Provided,  such  return  shall 
not  prejudice  any  lien  the  plaintiff  may  acquire  or  then 
have  by  virtue  of  said  fi.  fa.  or  venditioni  exponas.  At  Spring 
Term,  1869,  execution  on  all  such  judgments  or  decrees  shall 
issue  for  only  one-tenth  of  the  amount  then  due;  at  Spring 
Term,  1870,  for  one-fifth  of  the  residue;  at  Spring  Term, 
1871,  for  one-half  of  the  residue,  and  at  Spring  Term,  1872, 
for  the  balance  of  the  debt;  and  no  execution  shall  issue 
from  the  fall  Term  on  any  such  judgment  or  decree  except 
by  consent  of  the  defendant.  That  no  mortgagee  or  trustee 
shall  expose  to  sale  the  property  conveyed  in  such  mortgage 
or  trust  deed,  without  consent  of  the  grantor,  before  first  of 
March,  1869.  Should  the  mortgagor  or  trustor  at  that  time 
pay  one-tenth  of  the  debts  mentioned,  the  sale  shall  be 
postponed  to  first  of  March,  1870;  at  that  time  should  the 
mortgagor  or  trustor  pay  one-fifth  of  the  residue,  the  sale 
shall  be  postponed  to*  the  first  of  March,  1871;  at  that  time, 
should  the  trustor  or  mortgagor  pay  one-half  of  the  residue, 


ORDINANCE.  217 

the  sale  shall  be  postponed  to  first  of  March,  1872,  and  at 
that  time  the  trustee  or  mortgagee  shall  sell  the  property  or 
so  much  of  it  as  will  realize  the  balance  of  the  debts;  Pro- 
vided, however,  That  should  the  trustor  or  mortgagor  fail  to 
pay  the  first  or  any  subsequent  installment,  then,  and  in 
that  case,  the  trustee  or  mortgagee  shall  sell  at  sis  months 
credit  so  much  of  the  property  conveyed  as  will  realize  such 
installment. 

Sec.  10.  Be  it  farther  ordained,  that  section  eleven  of  the 
above  entitled  act  he  amended  to  read  asfoUoivs  :  That  no  war- 
rant before  Justices  of  the  Peace  shall  issue  or  be  returna- 
ble until  January  1st,  I860.  Should  the  defendant  upon 
such  return  pay  to  the  plaintiff,  or  to  the  collecting  officer, 
for  his  use,  or  confess  judgment  before  the  magistrate  for 
one-tenth  of  the  debt  and  demand,  (principal  and  interest) 
he  shall  be  allowed  twelve  months  to  plead;  at  the  expira- 
tion of  that  time,  should  the  defendant  pay  to  the  plaintiff 
or  confess  judgment  for  one-fifth  of  the  residue  of  the  said 
debt  or  demand,  he  shall  be  allowed  twelve  months  more  to 
plead;  at  the  expiration  of  that  time  should  the  defendant 
pay  to  the  plaintiff  or  confess  judgment  for  one-half  of  the 
residue  of  said  debt  or  demand,  he  shall  be  allowed  twelve 
months  more  to  plead;  at  the  expiration  of  that  time  the 
plaintiff  shall  have  judgment  for  the  residue  of  his  debt  or 
demand:  Provided  however,  That  the  plaintiff,  if  required, 
shall  file  his  claim  in  writing,  and  if  the  defendant  shall 
make  oath  that  the  whole  or  any  part  thereof  is  not  justly 
due,  or  that  he  lias  a  counter  demand,  all  of  which  he  shall 
particularly  set  forth  by  affidavit,  then  the  defendant  shall 
only  pay  the  installment  required  heretofore  recovered  upon 
any  such  bond,  promissory  note,  bill  of  exchange  or  other 
instruments  of  writing  or  parol  promise  as  is  hereinbefore 
mentioned. 

[Section's  eleven  to  twenty-four  inclusive  are  from  the  original  Ordinance 
unamended.] 

Sec  1 1.  Be  it  farther  ordained,  That  all  writs  of  scire  facias 
to  subject  bail,  issued  from  the  Superior  or  County  Courts 
upon  judgments  in  actions  of  debt,  convenant,  assumpsit  or 


218  ORDINANCE. 

account,  shall  be  returned  to  Spring  (.Term,  1S67,  of  the- 
Superior  Courts,  and  should  the  tenth,  fifth,  and  half  of  the 
judgments  be  paid  from  Spring  Term  to  Spring  Term,  time 
to  plead  shall  be  allowed,  according^to  section  three  of  this 
Ordinance. 

Sec.  12.  Be  it  further  ordained,  That  this  Ordinance  shall 
not  apply  to  judgments  for  costs  only. 

Sec  13.  Be  it  further  ordained,  That  this  Ordinance  shall 
not  apply  to  the  remedies  for  the  collection  of  town,  county 
or  State  Revenue. 

Sec.  14.  Be  it  further  ordained,  That  this  Ordinance  shall 
not  apply  to  proceedings  by  attachment,  unless  the  defen- 
dant replevy  and  give  bail,  and  then  and  in  that  case  the 
procedings  shall  be  subject  to  the  provisions  of  this  Ordi- 
nance as  if  commenced  by  writ  or  warrant. 

Sec  15.  Be  it  further  ordained,  That  where  the  action  is 
by  or  on  behalf  of  infants,  still  minors  at  the  return  term, 
and  the  interest  exceeds  one-tenth,  the  first  payment  shall 
be  increased  to  the  amount  of  interest  due,  not  to  exceed 
one-fifth  of  the  whole  debt. 

Sec  16.  Be  it  further  ordained,  That  the  provisions  of  this 
Ordinance  shall  not  be  construed  to  extend  to  any  debts  or 
demands  contracted,  or  penalties  incurred,  since  the  first  day 
of  May,  A.  D.,  1865,  or  which  may  be  hereafter  contracted 
or  incurred,  but  that  the  remedies  for  the  recovery  of  the 
same  shall  be  in  all  respects  similar  to  the  remedies  for  the 
recovery  of  debts  which  were  in  force  in  the  year  1860. 

Sec  1.7.  Be  it  further  ordained,  That  any  creditor, 
attempted  to  be  defrauded  as  set  forth  in  section  one,  chapter 
fifty,  Revised  Code,  may,  without  obtaining  judgment  at 
law,  file  his  bill  in  Equity,  and  said  Court  is  hereby  author- 
ized and  empowered  to  direct  proper  issues  to  be  made  up 
and  tried,  and  to  make  such  orders  and  decrees  as  to  right 
and  justice  may  appertain ;  and  said  proceeding  shall  not 
affect  the  creditor's  right  to  proceed  at  the  same  time  at  law; 
and  any  surety,  before  paying  the  debt  of  his  principal  thus 
attempting  to  defraud  his  creditors,  may  institute  proceed- 
ings in  Equity,  in  like  manner,  to  the  end  that  he  may  obtain 
relief. 


ORDINANCE.  219 

Sec  18.  Be  it  farther  ordained,  That  every  executor,  or 
administrator,  shall  file  on  oath,  at  the  termination  of  two 
years  from  the  time  of  his  qualification  a  full  statement  of 
his  receipts  and  disbursements  and  the  condition  of  the 
assest,  particularly  setting  all  money  collected  and  how 
disbursed,  and  on  motion  the  court  may  allow  further  time, 
to  settle  the  estate  from  year  to  year  not  exceeding  three 
years;  Provided,  That  on  motion  to  extend  the  time  a  sup- 
plemental statement  shall  be  filed:  Provided,  That  any 
creditor  or  next  of  kin  may  oppose  said  motion,  and  if  the 
statement  is  not  full  and  fair,  file  interrogatories  which  the 
executor,  or  administrator,  shall  answer  before  his  motion 
for  time  is  allowed:  Provided  further,  That  the  court  may 
also  extend  the- time  for  pleading:  Provided  farther,  That 
all  executors,  or  administrators,  who  have  heretofore 
qualified  shall  be  allowed  until  the  County  Court,  next  after 
the  first  day  of  January  1867,  to  file  their  statement. 

Sec  19.  Be  it  farther  enacted,  That  all  Acts  and  parts  of 
Acts,  suspending  the  operation  of  the  Statutes  of  Limitation 
in  the  Revised  Code',  are  hereby  repealed  except  as  herein 
provided:  Provided,  That  the  time  lapsed  since  the  first 
day  of  September,  one  thousand  eight  hundred  and  sixty- 
one,  barring  actions  or  suits,  or  presuming  the  satisfaction 
or  abandonment  of  rights  shall  not  be  counted.  Provided 
farther,  That  nothing  contained  in  this  Ordinance  or  in  the 
Acts  hereby  repealed  shall  be  so  construed  as  to  prevent 
judgment  from  becoming  dormant. 

Sec  20.  Be  it  further  enacted,  That  any  sheriff,  clerk  or 
other  officer,  failing  to  execute  any  of  the  provisions  of  this 
Ordinance  when  the  execution  thereof  devolves  on  him,  or 
issuing,  receiving,  or  executing,  any  process  whatever,  con- 
trary to  the  provisions  of  this  Ordinance,  shall  be  subject  to 
a  penalty  of  five  hundred  dollars  to  be  recovered  by  a  rule 
of  court  as  penalties  and  fines  were  recovered  in  18G0. 

Sec  21.  Be  it  further  ordained,  That  in  all  actions  brought 
by  any  bank  or  other  corporation,  having  exercised  bank- 
ing privileges,  or  by  an  assignee  or  indorsee,  or  officer  of 


220  ORDINANCE. 

said  county  or  corporation  it  shall  and  may  be-  lawful  for 
the  defendant  to  set-off  by  plea,  or  on  trial  any  note  or  cer- 
tificate of  deposit  issued  by  said  bank  or  its  branches,  or  other 
corporation,  whether  the  same  has  been  presented  for  pay- 
ment or  not,  any  law  or  usage  to  the  contrary  notwithstand- 
ing; but  said  plea  of  set  off,  or  set  off  on  trial,  shall  not 
avail  to  carry  costs  against  the  plaintiff,  unless  there  has 
been  a  tender  of  such  payment  before  suit  brought:  Pro- 
vided, That  should  the  defendant  require  the  debt  to  be 
scaled  according  to  the  scale  of  depreciation  of  Confederate 
currency,  then,  and  in  that  case,  the  said  notes  or  certificates 
of  deposit  shall  not  be  a  set  off  in  any  manner. 

Sec.  22.  Be  it  farther  ordained,  That  "  An  Act  to  change 
the  jurisdiction  of  the  Courts,  and  the  rules  of  pleading," 
ratified  the  11th  day  of  September,  18G1;  an  Act  entitled 
"An  Act  to  restore  the  Courts  and  for  other  purposes," 
ratified  the  14th  December,  1863;  also,  an  Act  entitled  "An 
Act  to  change  the  jurisdiction  of  the  Courts  and  the  rules 
of  pleading  therein,"  ratified  the  10th  of  March,  A.  D.,  1866, 
and  all  laws  in  conflict  with  this  Ordinance,  be  and  the 
same  are  hereby  repealed. 

Sec  23.  Be  it  further  ordained,  That  the  General  Assembly 
shall  have  no  power  to  repeal,  alter  or  modify  this  ordinance 
until  the  third  Monday  of  November,  1868,  and  this  Ordi- 
nance shall  take  effect  and  be  in  force  from  after  its  ratifi- 
cation. 

(Ratification  of  original  Ordinance.) 

Adopted  by  the  Convention,  June  23d,  1866. 

EDWIN  G.  READE,  President 
J  as.  II.  Moore,  Secretary. 
R.  C.  Badger,  Assistant  Secretary. 

(Ratification  of  amended  Ordinance.) 

Sec.  24    Be  it  further  ordained,  That  this  Ordinance  shall 
be  in  force  from  and  after  its  ratification. 
Ratified  this  14th  day  of  March,  A.  D.,  1868. 

CALVIN  J.  COWLES,  President 
T.  A.  Byrnes,  Secretary. 


APPENDIX. 


Note  1. — Title  I,  §8,  sub-division  three,  page  3.  This 
section,  including  subdivision  three,  passed  both  Houses  of 
the  General  Assembly,  but  by  some  error,  this  entire  sub- 
division was  omitted  in  the  bill  as  finally  enrolled  and  de- 
posited in  the  office  of  the  Secretary  of  State.  This  error 
was  not  discovered  in  time  to  permit  its  correction.  A  large 
class  of  actions  is  thus  left  specially  unprovided  for,  though 
it  will  be  seen  by  consulting  section  405,  page  149,  that  it  is 
there  provided  that  summons  in  all  new  actions  coming 
under  the  provisions  of  the  Act  of  March  14th,  1868,  shall 
be  returnable  in  accordance  with  its  provisions.  It  is,  there- 
fore, clearly  shown  that  it  was  no  part  of  the  intention  of 
the  General  Assembly  to  repeal  the  provisions  of  this  Act. 
It  was  not  the  intention  of  the  Commissioners  to  present  to 
the  Assembly,  any  provision  interfering  with  any  rightful 
delay  to  which  the  debtor  might  -be  entitled.  Nor  is  it 
believed  that  a  just  construction  of  this  section,  even  in  its 
present  mutilated  form,  will  so  operate.  As  it  was  not  pos- 
sible, consistently  with  the  constitutional  provisions,  to  make 
any  provisions  whereby  new  actions  arising  from  causes  of 
action  precedent  to  the  ratification  of  the  Code  of  Procedure, 
might  be  governed  by  former  laws,  in  respect  to  form,  sub- 
division four  was  so  framed  as  to  bring  them  under  the  old 
practice  so  far  as  possible,  or  "as  near  as  may  be,"  which  the 
Commissioners  believe  to  include  everything  except  form 
and  equitable  defences,  which  must  of  necessity,  now  be 
allowed,  to  such  actions,  as  otherwise  the  respondent  would 
be  without  remedy,  the  Court  of  Equity  being  abolished. 

Note  2.—  Title  XX,  §503,  page  184,  Rule  IV.  No  record  can 
be  found  in  either  House  of  the  Geueral  Assembly,  of  any 
amendment  by  which  this  Rule  was  stricken  out.  It  is 
believed  to  have  passed  botli  Houses  and  to  have  been  omit- 


222  APPENDIX. 

ted  in  engrossment  by  error.  If  not,  it  is  a  confident  belief 
of  the  Commissioners  that  a  provision  so  important  will  not 
be  allowed  to  remain  unenacted  beyond  an  early  day  of  the 
next  session.  The  mere  neglect  of  the  defendant  to  answer, 
by  no  means  gives  the  plaintiff  the  right  to  recover,  and  no 
rule  can  be  more  important  than  that  which  requires  the 
plaintiff  to  prove  his  right  before  he  recover  judgment. 


INDEX. 


ACTION. — Civil  constitutional  definition  of, 
Criminal  constitutional  definition  of, 
Definition  of, 
by  aliens, 

to  be  by  party  in  interest, 
by  grantee  of  land,  held  adversely, 
by  executor,  trustee  &c, 
by  or  against  married  woman, 
by  administrator, 
for  partition  of  real  property, 
for  foreclosure  of  mortgage,  &c, 
what  causes  of,  joined  in  same  complaint, 
to  recover  notes,  &c, 
submitting  a  controversy  without, 
for  discovery  abolished, 
to  be  dismissed,  when  in  Justice's  Courts, 
another,  may  be  brought, 
;o  what  Code  of  Procedure  applicable, 
commenced  before  approval  of  Constitution, 
pending  at  approval  of  Constitution, 
pending  in  County  Courts, 
pending  in  Superior  Courts, 
pending  in  Equity  Courts, 
commenced  after  ratification  of  Code, 
commenced  prior  to  ratification  of  Code, 
included   within  provisions  of  Ordinance  of  March  14, 

1868, 
not  included  withing  provisions  of  Ordinance  of  March 

14,  1868, 
civil,  forms  of  abolished, 

at  l<iw,  and  suits  in  Equity,  distinction  abolished, 
civil,  one  form  of, 

on  judgment,  when  they  may  be  brought, 
limitation  of, 
commenced  before  ratification  of  Code  to  be  governed  by 

former  laws  of  limitation, 
civil,  within  what  period  commenced, 
for  recovery  of  real  property  when  commenced, 

15 


'AGE 

SEC. 

1 

Pre. 

2 

Pre. 

2 

2 

19 

44 

21 

55 

21 

55 

22 

57 

22 

56 

22 

57 

23 

59 

23 

59 

47 

126 

75 

210 

120 

315 

126 

331 

183 

501 

183 

502 

2 

8 

3 

8 

9 

12 

9 

12 

9 

12 

10 

14 

10 

16 

10 

16 

11 

17 

11 

18 

226  INDEX. 

PAGE 

ACTION  for  recovery   of  real  property  barred  by  twenty  years 

adverse  possession, 
for  real  property  by  State,  when  barred, 
upon  entry  upon  real  estate,  when  commenced, 
other  than  for  real  property,  time  of  commencing, 
which  must  be  commenced  within  ten  years  after  right 

accrue, 
upon  judgment  or  decree  of  Court  of  United  States, 
upon  a  sealed  instrument, 
for  foreclosure  of  mortgage, 
for  redemption  of  mortgage, 
to  be  commenced  within  seven  years, 
on  a  judgment  rendered  by  Justice  of  the  Peace, 
against  personal  representatives  of  deceased  persons, 
upon  official  bond  of  any  public  officer, 
against  executor,  administrator,  &c, 
for  injury  to  any  incorporeal  heriditament, 
to  be  commenced  within  three  years, 
upon  contract,  &c, 
upon  liability  created  by  statute, 
for  trespass  upon  real  property, 
for  taking,  detaining,  concealing,  &c,  real  property, 
against  sureties  of  any  executor,  &c, 
against  bail, 

for  fees  due  to  any  clerk,  sheriff  or  other  officer, 
for  relief  on  the  ground  of  fraud, 
to  be  commenced  within  one  year, 
against  sheriff,  coroner,  constable,  &c, 
upon  a  statute  for  penalty  or  forfeiture, 
for  libel,  assault  aud  battery  or  false  imprisonment, 
against  sheriff  or  other  officer,  for  escape  of  prisoner, 
by  creditor  of  any  deceased  person, 
within  six  months, 
for  other  relief, 

by  the  State,  limitation  to  apply  to, 
upon  an  account  current,  when  cause  accrues, 
deemed  commenced  when 
civil,  parties  to 

by  aliens,  time  of  war  not  counted, 
existing  at  the  ratification  of  this  Act, 
to  be  tried  where  sulyect  matter  situated, 
for  partition  of  real  property, 
for  foreclosure  of  mortgage  of  real  property, 
for  the  recovery  of  personal  property, 
to  be  tried  where  cause  of,  arose, 
for  recovery  of  penalty  on  forfeiture, 


13 

23 

11 

18 

13 

24 

14 

30 

15 

31 

15 

31 

15 

31 

15 

31 

15 

31 

15 

32 

15 

32 

15 

32 

15 

33 

15 

38 

15 

33 

1G 

34 

16 

34 

16 

34 

16 

34 

16 

34 

16 

34 

16 

34 

16 

34 

16 

34 

16 

35 

16 

35 

16 

35 

17 

35 

17 

35 

17 

85 

17 

36 

17 

37 

17 

34 

17 

39 

18 

40 

21 

55 

19 

44 

25 

64 

26 

66 

26 

66 

26 

66 

26 

66 

26 

67 

26 

67 

INDEX. 


227 


ACTION  agaiust  a  public  officer, 

to  be  tried  where  defendant  resides, 

for  foreclosure  of  mortgage, 

in  particular  casea, 

for  foreign  corporations,  when  and  by  whom  brought 

in  place  of  scire  facias,  &c.,  abolished, 

may  be  brought  by  Attorney  General, 

to  annul  a  corporation,  brought  by  Attorney  General, 

by  Attorney  General,  leave  to  bring,  how  obtained, 

upon  information  or  complaint,  of  course, 

when  and  how  brought  to  vacate  letters-patent, 

for  forfeiture  of  property  to  the  estate, 

for  the  partition  of  real  property, 

for  waste  and  nuisance, 

for  waste  abolished.     Waste,  how  remediable. 

to  recover  debts  embraced  in  stay-law, 

ACKNOWLEDGMENT  by  partner,  &c, 

after  statute  has  barred, 

evidence,  against  whom, 

must  be  in  writing,  * 

by  payment  of  principal  and  interest, 
ACCOUNTS,  annual, 
ACCOUNTINGS  by  executors, 

by  administrators, 

by  collectors  and  guardians, 
ADMINISTRATOR— pendente  lift, 

action  by, 

qualifications  of, 

accounting  by, 

failure  to  account, 

final  accounts  of, 

ADMINISTRATION.— letters  of, 

letters  of  disqualifications  of  persons, 

letters  of  joining  persons  not  entitled, 

letters  of  renunciation  of  persons  having  prior  right, 

letters  of  persons  having  prior  right  disqualified, 

letters  of  what  must  be  ahown  on  application  for, 

contested, 

ADMISSION  on  inspection  of  writing, 
ADVERSE  possession  for  twenty  years. 
AFFIDAVIT  to  obtain  order, 

an  ordei  to  be  delivered  to  sheriff, 
AFFIDAVITS  on  motion, 

and  its  requsites, 

and  notice,  when  and  where  filed, 


PAGE. 

SEC. 

26 

67 

27 

68 

34 

86 

137 

137 

361 

137 

362 

138 

362 

138 

364 

139 

385 

139 

366 

139 

367 

143 

381 

143 

144 

144 

383 

149 

405 

20 

50 

20 

50 

20 

50 

20 

51 

20 

51 

175 

478 

175 

175 

175 

19 

47 

22 

57 

168 

454 

175 

176 

479 

177 

481 

168 

453 

169 

467 

169 

458 

170 

459 

170 

460 

170 

491 

126 

331 

13 

2  3 

56 

151 

57 

154 

62 

175 

63 

177 

66 

178* 

228 


INDEX. 


AFFIDAVITS  copj^of,  tojbejserved  with  injunction, 

on  motion, 

entitling, 

definitely  entitled,  valid 
ALLEGATION  not  denied,*to  bejdeemed  true,  when 
ALIENS,  actions  by 
ALLOWANCE,  additional^allowance, 

how  computed, 

in  difficult  and  extraordinary  cases, 
AMENDMENTS  of  course,  after  allowance  of  demurrer, 

by  order, 

AMOUNT  of  costs  allowed, 
ANSWER  to  title, 

APPEARANCE  of  defendant,  voluntary, 
APPEAL  from  decision  of  clerk, 

duty  of  Judge  on, 

secured  on, 

who  may, 

in  what  cases  it  may  be  taken, 

when  taken,  execution  not  suspended  when, 

to  be  entered  by  clerk,  on  judgment  docket, 

when  taken  and  by  whom, 
APPEAL — from  Justice's  Courts, 

when  to  be  taken, 

notice  of,  on  whom  served, 

return  to  the, 
APPOINTMENT  of  guardian  in  particular  action, 

of  guardian  upon  application  of  infant, 

of  guardian  upon  application  of  general  [or  testamentary 
guardian, 

of  guardian  upon  application  of  friend, 

APPRENTICE  and  Master, 

binding  to  be  by  indenture, 
for  what  time  bound, 
how  compelled  to  serve, 

APPRENTICED,  who  may  be, 
ARREST  and  bail, 

in  what  cases, 

order  for,"by  whom  made, 

security  of  plaintiff  before  order  of, 

how  made, 

vacating  order  of,  or  reducing  bail, 


PAGE. 

SEC. 

67 

190 

69 

196 

132 

182 

347 

48 

120 

19 

44 

108 

280 

109 

281 

109 

281 

49 

131 

50 

132 

106 

279 

182 

500 

36 

90 

42 

109 

43 

113 

93 

254 

113 

298 

113 

299 

114 

300 

114 

801 

180 

492 

193 

534 

194 

535 

194 

536 

194 

587 

22 

59 

22 

59 

22 

59 

22 

59 

177 

177 

482 

178 

486 

179 

488 

177 

484 

55 

55 

149 

56 

150 

57 

152 

58 

155 

62 

174 

INDEX. 


229 


ARREST  and  bail  in  Justices  courts 

order  for,  by  whom  made, 

affidavit  to  obtain  order  for 
ASSAULT  and  battery,  action  for, 

ASSIGNMENT  of  things  in  action, 

to  be  without  prejudice, 

not  to  apply  to  note,  bill  of  exchange,  &c. . 
ATTACHMENT  of  property  of  foreign  corporations, 

of  property  of  non-residents, 

of  property  absconding  or  concealed  defendants, 

on  warrant  of,  publication  to  be  made, 

interest  in  corporations,  liable  to, 

how  executed  on  property  incapable  of  manual|delivery, 

discharge  of  property  and  return  of  proceeds,  on 

discharge  of 

before  Justice  of  the  Peace, 
ATTORNEY,  fee  bills  abolished, 

BAIL,  actions  against 

how  given. 

how  proceeded  against, 

how  exonerated, 

undertaking  of,  delivered  to  plaintiff, 

new,  notice  of  justification, 

qualification  of, 

justification  of, 

allowance  of, 

substituting  deposit  for, 

sheriff  when  liable  as 

sheriff  liable  to, 

vacating  order  of  arrest  or  reducing, 
BANK  NOTES,  limitation  not  to  apply  to, 
BANKING  COMPANIES,  limitations  in  regard  to 
BOND  of  Superior  Court  Clerk, 

how  approved,  &c, 

failure  to  give, 

to  sheriff  on  attachment, 

official, 

of  executor, 

CALENDAR,  criminal,  first  disposed  of, 

CANAL  companies  not  barred  by  limitation, 

CAVEAT, 

CERTIFICATE  of  defendants,  interests  to  be  furnished, 


?AOE, 

189 

SEC, 

189 

513 

189 

514 

17 

35 

21 

55 

21 

55 

21 

55 

69 

197 

69 

197 

69 

197 

70 

198 

73 

206 

73 

207 

76 

212 

76 

213 

190 

516 

105 

275 

16 

34 

58 

157 

59 

160 

59 

160 

59 

162 

60 

163 

60 

164 

60 

165 

60 

166- 

61 

169 

61 

171 

62 

173 

62 

174 

20 

53 

21 

54 

51 

137 

52 

138 

52 

140 

76 

211 

160 

431 

172 

468 

84 

239 

14 

29 

165 

446 

208 


230 


INDEX. 


CIVIL  ACTION,  constitutional  definition  of, 

forms  of,  abolished, 

one  form  of, 

place  of  trial, 

manner  of  commencing, 

manner  of  the  pleadings  in, 

forms  of  pleadings,  heretofore  existing  abolished, 

provisional  remedies  in, 

of  the  trial  and  judgment  in, 

disposing  of  issues  in, 

execution  of  the  judgment  in, 

miscellaneous  proceedings  in, 
CLAIMANT  under  the  State, 
CLAIM — counter, 
CLERK— jurisdiction  conferred  on  by  the  word  court, 

of  Superior  Court,  to  issue  summons, 

of  Superior  Court,  jurisdiction  on  pleadings, 

decision  of — either  party  may  appeal, 

duty  of,  on  appeal  prayed, 

of  Superior  Court,  general  duties  and  qualifications 

bond  of, 

qualification  of, 

failure  to  give  bond, 

where  to  keep  office,  when  to  be  open, 

to  receive  official  papers, 

to  keep  records,  &c., 

books  to  be  kept  by, 

trial  may  be  postponed  by,  when, 

to  enter  judgment  on  judgment  book, 

to  enter  judgment  rendered  in  other  courts, 

to  index  judgments, 

fees,  sheriffs,  &c, 

to  make  copy  of  judgment-roll  and  send  to  Superior  Court 
Clerk, 

of  Superior  Court  to  transfer  existing  suits, 

to  furnish  blank  writs, 

of  Superior  Court,  fees  of 

of  Supreme  Court,, 

CODE  OF  CIVIL  PROCEDURE,  printing  of 

CODE,  ratification  of  Statutes  composing  the 

COMPLAINT,  copy  to  be  served  on  defendant, 
the  first  pleading  is, 
what  to  contain, 
if  amended  how  proceed, 
objection  not  appearing, 


PAGE. 

BEC, 

1 

Pre. 

9 

12 

9 

12 

26 

28 

70 

37 

37 

91 

55 

79 

84 

22» 

95 

120 

11 

19 

40 

101 

3 

9 

28 

71 

42 

108 

42 

108 

42 

110 

51 

52 

137 

51 

139 

52 

140 

53 

141 

53 

142 

53 

143 

53 

144 

83 

227 

93 

252 

93 

252 

93 

262 

100 

284 

115 

302 

148 

400 

199 

55$ 

201 

565- 

209 

572. 

210 

573 

211 

575 

30 

76 

38 

92 

38 

93 

39 

97 

39 

9& 

IXDEX.  231 

COMPLAINT  may  be  dismissed,  for  neglect  to  prosecute  actioD, 
and  arrest  of  defendant  in  action, 

COMPUTATION  of  time, 

CONSTITUTIONAL  Provision  for  Code  of  Civil  Procedure, 

CONTRACT,  action  upon  when  commenced, 

CONDITIONS  precedent,  how  to  be  pleaded, 

CONSTABLES,  fees  of 

CONSTRUCTION,  rule  of, 

CONTROVERSY,  how  submitted  without  action, 

CONVEYANCE,  if  to  execute,  it  must  be  executed  and  deposited,    117 

COPY-SHEET  defined, 

COPIES  OF  CODE,  how  distributed, 

COSTS  of  proceedings, 

when  allowed,  cause  to  plaintiff, 

on  several  actions  on  one  instrument, 

allowed  to  defendant,  when, 

allowed  te  either  party  at  discretion  of  the  court, 

amount  of,   allowed, 

additional  allowance  of, 

how  to  be  inserted  in  judgment, 

adjustment  of  interlocutory, 

against  infant  plaintiff, 

in  action  by  or  against  executor,  administrator, 

by  trustee  of  express  trust,  &c., 

in  civil  actions,  by  the  State, 

in  actions  by  the  State,  for  a  private  person, 

against  assignee  after  action  brought, 

on  a  settlement, 

on  appeals, 

in  existing  action. 

in  special  proceedings, 

on  appeals  from  Justices  of  the  Peace, 

against  corporations  or  persons,  claiming  to  be  such, 

how  awarded, 
CO-TENANT,  some  barred,  others  not,  when, 
COPY  PLEADINS,  Judge  to  be  furnished  with, 

of  judgment  roll  against  corporations, 

COUNSEL  to  put  prayers  for  instruction  in  writing, 
COURT,  definition  of  the  term, 

regular  term  of,  what  meant  thereby, 
when  to  mean  Judge, 
Superior,  force  of  term  in  Code, 
Superior,  original,  civil  jurisdiction  of 


AGE. 

6EC. 

91 

248 

140 

369 

132 

348 

1 

Pre. 

16 

34 

46 

122 

209 

570 

145 

391 

120 

215 

117 

306 

199 

556 

210 

568 

104 

273 

105 

276 

105 

276 

106 

277 

106 

278 

106 

279 

108 

280 

109 

283 

109 

283 

110 

286 

110 

287 

110 

287 

111 

288 

111 

289 

111 

290 

112 

291 

112 

292 

112 

293 

112 

294 

112 

295 

142 

377 

196 

515 

20 

52 

85 

231 

143 

379^ 

87 

239 

3 

9 

3 

9 

3 

9 

3 

9 

4 

10 

232  INDEX. 

COURT  may  determine  controversy  and  interpleader, 

may  change  place  of  trial, 

Superior,  duties  and  powers  of  clerk, 

payment  of  deposit  into, 

X>owers  of.  as  to  receivers, 

powers  of,  as  to  deposits  of  money, 

other  issues  to  be  tried  by  the  Judge,  or, 
COLLECTION,  letters  of,  when  to  issue  and  to  whom 

COLLECTOR,  qualifications  of 

authority  for 

authority  when  to  cease, 

accounting  by, 

failure  to  account, 

final  accounts, 
CHOSE  IN  ACTION,  assignment  of, 
CO-PLAINTIFF,  examination  of, 

co-defendant,  examination  of, 
CORPORATIONS,  judgment  on  forfeiture  against, 

restraining  as  and  appointment  of  receiver, 

copy  of  judgment  roll  against, 

CORONERS,  duties  of 
fees  of, 

COURT,  leave  of,  to  issue  judgment  on  execution, 

trial  by,  judgment  how  to  be  given, 

of  Justices  of  the  Peace, 

of  Justices  of  the  Peace,  manner  of  commencing  action, 
CREDITOR,  any  debtor  may  pay  execution  against  his 

CRIMINAL  ACTION— Constitutional  definition  of 

calender,  first  disposed  of 
CUMULATIVE  DISABILITIES,  effect  of 

DAMAGES — security  upon  injunction, 

rates  of  where  damages  recoverable, 

defendant  may  offer  to  liquidate  conditionally, 

how  recovered  for  assumption  of  office, 
DEATH,  cause  of  action  survives, 

action  shall  not  abate, 
DEBTOR,  may  pay  execution  against  his  creditors, 
DEBTORS,  joint  and  several, 
DECISION  on  motion, 
DEFENDANT,  who, 

to  be  whom, 

may  demand  judgment  of  nonsuit, 


PAGE. 

SEC. 

25 

64 

27 

69 

42 

108 

61 

168 

78 

215 

78 

215 

83 

225 

171 

463 

171 

464 

171 

•465 

171 

466 

175 

176 

479 

177 

481 

21 

55 

129 

310 

142 

376 

142 

378 

142 

379 

134 

354 

207 

568 

95 

256 

•  88 

211 

181 

494 

181 

100 

265 

1 

pre. 

84 

229 

14 

28 

68 

192 

92 

250 

125 

320 

141 

373 

18 

43 

24 

64 

100 

265 

34 

87 

131 

345 

10 

13 

24 

61 

30 

78 

INDEX.  233 


DEFENDANT,  a  foreign  corporation,  form  of  summons, 
a  resident  of  the  State,  but  absconding, 
not  a  resident,  but  has  property, 
allowed  to  defend  before  and  after  judgment, 
to  demur  on  answer, 
who  may  demur, 
answer  of,  what  to  contain, 
may  set  forth  several  defences, 
may  demur  to  one  or  more  causes  of  action, 
when  plaintiff  ignorant  of  the  name  of, 
copy  of  order  of  arrest  to  be  delivered  to, 
to  be  discharged  on  bail  or  deposit, 
surrender  of, 
surrender  of, 

when  entitled  to  re-delivery  of  property, 
sureties,  justification  of, 
interest  of,  certificate  of  to  be  furnished 
undertaking  on  the  part  of,  discharge  of  attachment, 
when  cost  allowed  to 
may  offer  to  liquidate  damages  conditionally, 

DEFENCE,  sham  and  irrelevant, 
DEFINITION  and  divisions, 

of  action, 

of  special  proceeding, 

of  civil  action, 

of  criminal  action, 

of  the  term  "  court,  " 

of  an  order. 

of  a  motion, 

of  "  real  property,  " 

of  "  personal  property,  " 

of  "property," 

DEMURRER,  must  specify  grounds  of  objection, 
to  answer  reply, 
to  reply, 
judgment  on  frivolous,  answer  and  reply, 

DIVISION  of  remedies, 
actions, 

DISABILITIES,  when  persons  under  may  sue  for  real  property, 

persons  who  are  under, 

cumulative,  effect  of, 

must  exist  when, 

co-existant, 
DISOBEDIENCE  of  order,  how  punished, 


•AGE. 

EEC. 

33 

83 

33 

83 

33 

83 

34 

85 

38 

94 

39 

95 

40 

100 

40 

102 

41 

103 

50 

134 

57 

154 

58 

156 

58 

158 

59 

159 

64 

181 

65 

182 

73 

208 

76 

213 

106 

277 

125 

320 

41 

104 

1 

2 

2 

2 

3 

2 

6 

2 

5 

3 

9 

131 

344 

131 

845 

145 

388 

145 

389 

145 

390 

39 

96 

41 

105 

42 

107 

81 

268 

1 

1 

2 

3 

14 

27 

14 

27 

14 

28 

20 

48 

20 

49 

104 

273 

234  INDEX. 

DIVORCE,  form  of  summons  for, 
DOCKET,— Judge  to  keep  one, 

to  be  kept  to  Superior  Court  Clerk, 

judgment, 

of  issues  of  fact, 

of  criminal  action, 
DOCKETING  Justice's  judgment, 
DORMANT  judgruents.how  received, 

DUTY  of  Probate  Judge  relating  to  apprentices, 

DUTIES  of  masters, 

EFFECT  of  acceptance  or  refusal  of  offer, 

of  report,  review, 
ENACTING  clause, 

ENTRY  of  judgment  relating  to  letters-patent, 
ERRORS  or  defects  not  substantial  to  be  disregarded, 
EXAMINATION  of  debtors  of  judgment  debtor, 

of  those  having  property  belonging  to  judgment  debtor, 

of  co-plaintiff  and  co-defendant, 

of  parties  in  action, 

also  allowed  before  trial, 
EXCEPTIONS,  how  and  when  taken, 
EXECUTOR'S  sureties, 

bond,  &c, 

EXECUTOR,  an  action  against, 

not  incompetent  as  witness, 

who  disqualified  to  serve  aa, 

may  renounce, 

when  deemed  to  have  renounced, 

under  disqualifications  of  age  or  absence, 

accounting  by, 

failure  to  account, 

final  accounts, 

on  what,  and  from  what  time  a  lien, 

stay  of  security, 

EXECUTION  of  the  judgment  in  civil  action, 
not  suspended  when  appeal  taken, 
levied  on  personal  property, 
satisfied, 

not  levied  at  all,  or  on  real  property, 
not  docketed, 
within  three  years, 
after  three  years  to  be  issued  only  by  leave  of  court, 


33 

83 

43 

114 

53 

144 

54 

144 

54 

144 

54 

144 

183 

503. 

149 

404 

178 

461 

178 

486 

125 

330 

90 

246 

1 

143 

380 

51 

135 

101 

266 

101 

266 

129 

340 

126 

127 

334 

88 

242 

16 

34 

15 

33 

162 

436 

166 

440 

167 

459 

167 

451 

167 

452. 

175 

176 

479 

177 

481 

187 

505 

95 

114 

300 

149 

407 

149 

406 

150 

408. 

150 

409 

95 

255 

95 

256 

INDEX.  235 


EXECUTION  different  kinds  of, 

to  what  counties  may  be  issued, 

against  a  married  woman, 

against  the  person,  in  what  cases, 

form  of  the, 

to  be  returnable  in  sixty  days, 

existing  laws  relating  to  continued, 

proceedings  supplemental  to  the, 

what  property  may  be  applied  to  the, 

of  the  judgment,  how  stayed, 
EXISTING  JUDGMENTS,  not  dormant,  may  be  transferred, 
EXISTING  SUITS,  actions  not  to  abate, 

actions  not  to  abate, 

order  for  discovery  of  property, 

examination  of  judgment  debtor, 

FACT— issues  of, 

issues  of  both  fact  and  law, 
FEE-BILL  of  attorney  abolished, 
FEES,  action  for, 

of  clerks,  sheriffs,  &c, 

of  referees, 

general  provisions  respecting, 

of  officers,  by  whom  and  how  payable, 

on  returns  to  Secretary  of  State, 

officers  to  make  returns  of, 

half,  if  convict  insolvent,  * 

of  officerg,  how  received, 

of  Solicitors, 

when  to  receive  salary, 

solicitors,  for  what, 

of  Clerks  of  Superior  Court, 

what,  and  for  what  in  civil  cases, 

what  and  for  what  in  criminal  actions, 

of  Register  of  Deeds, 

of  Sheriffs, 

of  Coroners, 

of  Justices  of  the  Peace, 

of  Constables, 

of  Jurors,  pay  and  mileage, 

and  salaries  of  Clerks  of  Supreme  Court, 
FEIGNED  ISSUES  abolished, 
FORMS  of  actions  and  suits  abolished, 
FORFEITURE— actions  for, 

GOODS  or  chattels,  action  for,  16        34 


PAGE. 

SEC. 

96 

258 

96 

259 

96 

259 

97 

260 

97 

261 

98 

262 

98 

263 

99 

102 

269 

195 

541 

148 

403 

24 

64 

93 

254 

99 

264 

99 

264 

82 

221 

82 

222 

105 

275 

16 

34 

110 

284 

110 

285 

198 

198 

555 

199 

557 

199 

558 

200 

561 

200 

562 

200 

200 

568 

201 

564 

201 

201 

565 

204 

565 

205 

566 

205 

567 

207 

568 

208 

569 

209 

570 

209 

571 

209 

572 

1 

Pre. 

1 

Pre. 

16 

35 

•236 


INDEX. 


GUARDIAN— Infant  to  appear  by 

or  infant-plaintiff  to  give  security, 

ad  litem , 

account  abilities  of, 

not  to  receive  property  until  security  given, 

and  ward, 

power  over  orphans'  estate  to  appoint, 

accounting  by, 

failnre  to  account, 

final  accounts  of, 

GUARDIANSHIP,  proceedings  on  application  for, 
HUSBAND  and  wife— Witnesses, 


PAGE. 

SEC. 

22 

59 

22 

59 

22 

59 

135 

135 

355 

173 

173 

472 

175 

176 

479 

177 

481 

174 

474 

129 

341 

INSANE  person,  when  may  sue  for  real  property, 
INFANT  to  appear  by  guardian, 
INFANT-plaintiffor  guardian  must  give  security, 
INTEREST  in  corporations,  liable  to  attachment, 

certificate  of  defendants,  to  be  furnished, 

not  to  execute,  a  witness, 
INSPECTION  and  copy  of  books, 

and  copy  of  papers  and  documents, 
INDENTURE,  binding  to  be  by, 

remedy  thereon, 

IMPRISONMENT  on  criminaal  charge,  when  such  persons  may 
sue  for  real  property, 
false,  action  for, 

INJURY  to  any  incorporeal  hereditament,  an  action  for, 
INJUNCTION,  time  of  stay  by, 

by  order, 

in  what  cases, 

at  what  time  it  may  be  granted, 

after  answer, 

security  upon, 

older  to  show  cause, 

security  upon,  to  suspend  business  of  corporation, 

motion  to  vacate  or  modify, 
INSTRUCTIONS,  Judge  to  put  in  writing, 

prayers  for,  to  be  put  in  writing  by  counsel, 

ISSUES— Feigned— abolished, 
and  mode  of  trial, 
the  different  kinds, 
of  law 
■of  fact, 


14        27 


22 


58 
59 


129 

342 

126 

331 

126 

331 

177 

482 

177 

483 

14 

27 

17 

35 

15 

33 

19 

46 

66 

188 

67 

189 

67 

190 

67 

191 

68 

192 

68 

193 

68 

194 

68 

195 

87 

238 

87 

239 

1 

Pre. 

82 

82 

219 

82 

220 

82 

220 

INDEX. 


237 


ISSUES  of  both  law  and  fact,  law  tried  first, 
examination  of,  trial  defined, 
how  tried, 

other,  to  be  tried  by  Court  or  Judge, 
of  fact,  how  to  be  tried, 
order  of  disposing  of  in  civil  action, 
of  fact  and  matters  of  law, 
all  referable  by  consent, 

JOINDER  of  action, 

JOINT-TEN  A.NTS,  when  not  barred, 

JUDGE — when  meant  by  word  "  Court," 

issue  of  law  sent  to, 

party  to  be  heard  before, 

duty  of,  an  appeal, 

to  keep  a  docket, 

other  issues  to  be  trid  by  court  or, 

trial  postponed  by,  in  term,  when, 

to  be  furnished  with  copy-pleadings,  &c, 

may  direct  special  findings,  when, 

minutes  of,  motion  for  new  trial  on, 

to  explain  law,  but  express  no  opionion  on  facts, 

to  put  instructions  in  writing, 

reference  by, 

of  Superior  Court  not  present,  court  to  adjourn, 
JUDGES  of  Supreme  Court  shall  make  rules  of  practice, 

of  Superior  Court  to  suggest  rules, 

of  Superior  Court  to  issue  writs  of  habeas  corpus, 

of  Probate, 

of  Probate,  disqualifications  to  act, 

of  Probate,  waive  of  disqualification, 

of  Probate,  removal  of  proceedings, 

of  Probate,  enumeration  of  powers, 

of  Probate,  not  to  act  as  attorney, 

of  Probate,  seals  used, 

of  Probate  to  keep  files, 

of  Probate  to  keep  records,    . 

of  Pncbate,  books  furnished  by  Secretary  of  State, 
JUDGMENT,  on  decree  of  United  States  Court, 

of  Justices  of  the  Peace, 

reversed, 

defence  after, 

motion  for,  on  answer, 

on  motion  of  fact  final, 

and  trial  in  civil  action, 


PAGE. 

SEC 

82 

222* 

82 

223 

82 

224 

83 

225 

83 

226 

84 

229 

179 

490 

88 

244 

47 

126 

20 

52 

3 

9 

43 

111 

43 

112 

43 

113 

43 

114 

83 

225 

84 

228 

85 

231 

85 

233 

86 

236 

87 

237 

87 

238 

104 

272 

149 

396 

146 

396 

146 

395 

147 

399 

153 

417 

154 

419 

154 

420 

155 

421 

155 

422 

156 

424 

156 

425 

156 

426 

156 

427 

157 

428 

15 

81 

15 

32 

19 

45 

34 

8-5 

41 

-  106 

44 

115 

79 

238  INDEX. 


JUDGMENT,  arpon  failure  to  answer, 
defined, 

on  failure  of  defendant  to  answer, 
on  excess  of  counter  claim, 
on  frivolous  demurrer,  answer  or  reply, 
manner  of  extending, 
may  be  for  or  against  any  of  the  parties, 
may  grant  defendant  affirmative  relief, 
against  married  women, 
in  actions  for  recovery  of  personal  property, 
debtor,  examination  of, 
debtor,  proceeding  on  denial  of  indebtedness, 
roll,  clerk  to  make  copy  and  send  to  Supreme  Court  Clerk, 
for  money,  security  to  stay  execution, 
to  deliver  documents  or  personal  property, 
immediate  orders  affecting  the, 
on  appeal, 

in  controversy  without  action, 
how  enforced  or  appealed  from, 
debtor  dying — his  representative  may  be  summoned, 
may  be  confessed  for  debts  due, 
confession  of  without  action, 
and  execution, 
in  action  for  usurping  office, 
of  forfeiture  and  eviction  to  be  given,  when, 
execution  of,  how  stayed, 
roll, 

JUDGMENTS,  how  to  be  pleaded, 
how  satisfied, 

on  judgment  book  to  be  entered  by  clerk, 
rendered  in  other  courts,  entered  by  clerk, 
indexed  by  clerk, 
how  to  be  docketed, 
how  enforced, 
dormant,  how  reviewed, 
not  dormant,  when, 

JURISDICTION,  civil  of  Superior  Courts, 
court  to  have  acquired, 
of  Supreme  Court, 
of  Judges  of  Probate, 
and  manner  of  proceeding  in  Justice's  Courts  when  sum 

demanded  exceeds  two  hundred  dollars, 
over  estates  of  deceased  persons, 
when  Probate  Judge  has,  over  the  estate, 
Judge  first  acquiring  to  have  exclusive, 


PAGE. 

SEC. 

79 

79 

216 

80 

217 

80 

217 

81 

218 

88 

240 

91 

248 

.  91 

248 

91 

248 

92 

251 

99 

264 

103 

271 

115 

302 

115 

304 

116 

305 

119 

318 

119 

314 

120 

316 

120 

317 

121 

318 

123 

325 

123 

123 

327 

141 

370 

144 

385 

195 

541 

93 

253 

44 

115 

46 

121 

93 

252 

93 

252 

93 

252 

93 

254 

93 

257 

149 

404 

151 

411 

3 

9 

36 

90 

151 

413 

153 

418 

182 

498 

161 

161 

433 

161 

434 

INDEX. 


239 


JURY  may  render  special  original  verdict,  when, 

to  assess  defendant's  damages  in  certain  cases, 

trial  by,  how  waived, 

trials,  in  Courts  of  Justices  of  the  Peace, 

lists  furnished  to  each  Justice, 

box,  Justice  to  keep  a 

tried  by,  demanded,  or  waived  when, 

drawn,  and  trial  postponed, 

summoning  of  the, 

for  the  trial  of  the  cause, 

sworn  and  empaneled,  verdict  &c. 

less  than  sis  may  be  a,  when, 

fees,  deposit  of 

adjournment  after  the  return  of  the 
JURORS,  names  of,  to  be  deposited  in  jury  box. 

challenge  of, 

names  of,  returned  to  jury  box  or  destroyed, 

tales,  may  be  summoned, 

not  compelled  to  serve  as,  out  of  township, 

serving  on  trial,  &c. 

fees  of 
JUSTICES  of  the  Peace.— Courts  of 

of  the  Peace,  manner  of  commencing  action  in  Courts  of 

of  the  Peace,  docketing  judgments  of 

courts,  rules  of  proceedings  in, 

judgments  removed  to  another  county,  how, 

courts,  witnesses,  penalties,  &c. 

of  the  Peace,  general  provisions  respecting, 

of  the  Peace  within  what  time  to  qualify, 

of  the  Peace  removed  from  township  six  months  to  forfeit 
office, 

of  the  Peace  resignation  of, 

of  the  Peace  may  issue  process  and  try  cause  elsewhere 

of  the  Peace  may  accept  office  under  United  States, 

of  the  Peace  punishment  of  infamous  crimes, 

of  the  Peace  filing  docket  with  clerk, 

of  the  Peace  delivery  of  unfiled  docket  to  successor, 

of  the  Peace  fees  of, 

LANDLORD  and  tenant,  relation  of, 

when  deemed  to  possession, 
LAWS,  issues  of, 

issues  of,  to  be  tried  first, 

Judge  to  explain,  but  express  no  opinion  on  fact, 

of  other  States  and  governments,  how  proved, 

what  repealed  and  unrepealed, 

repealed, 


PAGE. 

SEC. 

85 

233 

86 

233 

.87  i 

i  238 

190 

190 

517 

190 

518 

191 

520 

191 

521 

191 

522 

191 

523 

192 

527 

192 

529 

193 

532 

193 

533 

191 

519 

191 

524 

192 

525 

192 

526 

192 

530 

192 

531 

209 

571 

181 

181 

495 

183 

508 

184 

'  504 

188 

509 

188 

510 

196 

196 

541 

197 

547 

197 

548 

197 

549 

197 

550 

197 

551 

197 

552 

197 

552 

208 

569 

13 

26 

13 

26 

82 

220 

82 

222 

87 

237 

136 

860 

180 

493 

181 

494 

240 


INDEX. 


LETTERS  testamentary, 

of  administration  with  will  annexed, 

of  administration,  to  be  granted  when  and  to  whom, 

of  collection, 

of  administration,  to  whom  granted, 

of  revocation  on  proof  of  will,  &c, 

of  rovocation  on  ground  of  disqualification  or  default, 

how  issued  and  tested, 

of  appointment  of  guardian, 

LIBEL,  action  for, 

and  slander,  how  stated  in  complaint, 

and  slander,  actions  in  such  cases, 
LIMITATION  of  actions, 

period  of, 

pleaded  by  answer, 

as  regards  actions  for  real  property, 

as  regards  actions  for  real  property, 

as  regards  actions  for  real  property, 

not  applicable  to  Railroads,  Canal  Companies,  &c, 
LIMITATIONS,  Chapter  65,  Revised  Code  repealed, 

to  what  cases  the  provisions  of  the  Code  extends, 
LIS  PENDENS,  notice  of, 
LUNACY,  inquisition  of, 

MAIL,  service  by, 

service  by, 

sheriffs  and  coroners  may  return  process  by, 
MARRIED  WOMAN,  when  may  sue  for  real  property, 

actions  by  or  against, 

husband  must  be  joined  in  action, 

may  sue  alone  concerning  separate  property. 

may  sue  alone  in  action  against  husband, 

need  not  sue  by  friend,  or  guardian, 

judgment  against, 

execution  against. 
MASTER  and  apprentice, 

duties  of, 

misconduct  of, 
MISTAKE,  relief  in  case  of, 
MONEY,  bank  notes  circulated  as, 

MOTION,  definition  of, 

decision  on, 
MOTIONS,  how  and  when  made, 
MORTGAGE,  action  for  foreclosure, 


PAGE. 

SBC. 

166 

168 

168 

453 

171 

169 

45  6 

173 

469 

173 

470 

173 

471 

175 

475 

17 

35 

47 

124 

47 

125 

10 

16 

11 

17 

11 

17 

11 

18 

11 

19 

12 

20 

14 

29 

10 

15 

10 

16 

36 

90 

174 

473 

133 

350 

134 

351 

134 

354 

14 

27 

22 

55 

22 

56 

22 

56 

22 

56 

91 

248 

96 

259 

177 

178 

486 

179 

489 

50 

133 

20 

53 

131 

345 

131 

345 

131 

345 

34 

86 

INDEX. 


241 


NON-SUIT,  defendant  may  demand  judgment  of, 
NOTICE  of  no  personal  claim, 

on  motion, 

and  filing  and  service  of  papers, 

how  served, 
NUISANCE  and  waste,  actions  for, 

writ  of  abolished, 

by  writ  of,  remedy  for  injuries  heretofore  remediable, 

OATH,  make  return  of  when, 

oaths,  &c, 
OCCUPATION,  when  presumed  to  be  under  legal  title, 
OFFER  of  compromise, 

of  defendant  to  compromise  the  whole  or  the  part  of  the 
action, 
OFFICIAL  BOND,  an  action  upon, 
OFFICIAL  BOND, 
OFFICE,  Superior  Court  Clerk,  where  to  be, 

Superior  Court  Clerk,  when  to  be  open, 
OFFICER,  trespass  of, 

to  require  no  fee  of  person  sued  as  pauper, 

entitled  to  fee  in  advance, 
ORDINANCE  of  14th  March,  1868,  effected, 
PARTY,  to  be  heard  before  Judge, 

summoned  may  answer  and  defend, 

may  examine  his  adversary  as  a  witness, 

how  compelled  to  attend, 
PARTIES,  how  designated, 

to  civil  action, 

to  be  joined,  &c. 

to  bills  and  notes,  all  or  any  included  in  same  action, 

compelling  to  testify, 

to  actions  in  special  pleadings,  cau  witness, 
PARTNERS,  joint  and  several  debtors, 

PAPERS,  official,  to  be  received  by  the  Clerk  of  the  Superior 
Court, 

in  each  action  to  be  kept  separate  and  filed  together, 

lost  or  withheld,  how  supplied, 
PAUPER,  power  to  sue  as,  how  obtained, 
PERSON,  no,  arrested  except  as  prescribed, 

sued  a3  pauper  not  to  pay  costs, 

within  the  age  of  twenty-one  years,  when  may  sue, 

imprisoned  on  criminal  charge,  when  may  sue, 

insane,  when  may  sue, 

who  is  a  feme  cwerte,  when  may  sue, 
PERSONS,  having  title  must  sue,  when, 

16 


PAGE. 

BEC. 

30 

78 

31 

81 

132 

346 

133 

133 

349 

144 

145 

386 

145 

387 

175 

477 

172 

467 

13 

25 

124 

328 

124 

15 

33 

160 

431 

53 

141 

53 

141 

16 

35 

28 

72 

29 

75 

151 

412 

43 

112 

112 

322 

127 

333 

127 

335 

10 

13 

31 

24 

61 

24 

6;5 

131 

345 

129 

31:J 

34 

87 

53 

142 

54 

146 

135 

357 

28 

72 

55 

148 

28- 

72 

14 

27 

14 

27 

14 

27 

14 

27 

12 

20 

242 


INDEX. 


PERSONS,  for  whom  action  is  brought, 

PERSONAL  representative,  action  against  when  brought, 

PENALTY,  action  for, 

for  offense  committed  on  any  body  of  water, 

for  usurping  office  or  franchise, 
PLAINTIFF,  who, 

proviso  when  judgment  for,  reversed, 

under  disabilities, 

a  minor, 

insane, 

imprisoned  on  criminal  charge, 

a  married  woman, 

may  commence  new  action, 

to  give  bond, 

failing  to  file  complaint  within  ten  days, 

to  be  whom, 

may  be  non-suited, 

to  name  an  attorney, 

ignorant  of  name  of  defendant, 

security  of,  before  order  of  arrest, 

delivery  of  bail  to, 

security  to, 

the  relief  awarded  to, 
PLANK  ROAD,  &c,  not  barred  by  limitation, 
PLEADINGS,  general  rules  of, 

to  be  subscribed  and  verified, 

how  verified, 

how  construed, 

items  of  account, 

irrelevant  and  redundant  matter, 

mistakes  in  and  amendments, 

supplemental, 

&c,  how  written, 
POSSESSION,  thirty  years  good  against  State, 

twenty-one  years  with  colorable  title, 
•  valid  against  claimants  under  the  State, 

adverse  for  twenty  years,  bars  suit, 

adverse  for  twenty  years,  gives  title, 

presumed  when, 

by  tenant,  the  possession  of  landlord, 
POWER  of  reierees, 

PRACTICE— In  actions  pending  July  3rd,  1868, 
in  actions  pending  at  ratification  of  Code, 
in  actions  pending,  founded  on  contract, 
in  actions  pending,  not  founded  on  contract, 

PRAYERS  by  counsel,  for  instructions  to  be  put  in  writing 


PAGE. 

SEC. 

129 

3S9 

15 

32 

16 

35 

26 

67 

142 

375 

10 

13 

12 

21 

18 

42 

18 

42 

18 

42 

18 

42 

18 

42 

19 

45 

28 

71 

30 

77 

23 

60 

30 

78 

31 

89 

50 

134 

57 

152 

59 

162 

64 

179 

92 

349 

14 

29 

44 

44 

116 

44 

117 

44 

119 

45 

11 

4G 

120 

48 

51 

136 

142 

375 

11 

18 

11 

18 

11 

19 

13 

23 

13 

23 

13 

25 

13 

26 

135 

356 

3 

8 

3 

8 

3 

8 

3 

8 

87 

239 

INDEX. 


243 


PROCEEDINGS  upon  judgment  on  issue  of  law, 

upon  claim  of  another  party  to  property, 

on  denial  of  indebtedness, 

cost  of, 

stayed  when  security  given, 

miscellaneous  in  civil  actions, 

stay  of, 
PROBATE  courts,  jurisdiction  and  powers, 

Judges  of, 

Judges  of,  jurisdiction  of, 

of  Deeds, 

of  Deeds,  how  made, 

court,  how  judge  may  appear  in, 

of  Deeds  when  land  lies  in  two  or  more  counties, 

Judge  of  when  disqualified  to  act, 

Judge  of  when  has  jurisdiction  over  estates, 

Judge  of  when  acquiring  jurisdiction  to  have  it  exclusive, 

of  wills, 

how  wills  admitted  to, 

how  far  conclusive, 

who  may  apply  for, 

who  may  apply  when  executor  does  not, 

what  to  show  on  application  to, 

auditing  by  Judge  of, 
PROOF— failure  of  when, 

PROOFS  and  examination  in  writing  of  witnesses, 
PROPERTY,  personal,  claim  and  delivery  of, 

personal,  delivery  of, 

requisition  to  sheriff  to  take  and  deliver, 

how  taken,  when  concealed, 

how  kept, 

claim  of,  by  third  person, 

attachments  on,  foreign  corporations, 

non-residents, 

absconding  or  concealed  defendants, 

perishable,  proceedings  in  case  of, 

incapable  of  manual  delivery, 

personal,  judgment  in  action  for  recovery  of, 

may  be  ordered  to  be  applied  to  the  execution, 

perishable  may  be  soldj  notwithstanding  appeal, 

personal,  definition  of, 

real,  definition  of, 

personal,  execution  levied  on, 

PROCEDURE,  Code  of  Civil,  printing  of, 
PROVISO— in  case  of  judgment  for  plaintiff  reversed, 


PAGE. 

BEC. 

89 

242 

103 

271 

103 

271 

104 

273 

117 

308 

120 

131 

345 

153 

153 

417 

153 

418 

157 

429 

157 

429 

156 

423 

160 

430 

160 

432 

161 

433 

161 

434 

161 

161 

435 

162 

438 

162 

439 

162 

440 

162 

441 

49 

130 

162 

457 

63 

63 

176 

63 

178 

65 

184 

66 

185 

66 

186 

69 

197 

69 

197 

69 

167 

73 

205 

73 

207 

92 

251 

102 

169 

118 

311 

145 

389 

144 

384 

149 

406 

210 

573 

12 

21 

244 


INDEX. 


PROVISIONS,  general, 

of  the  Revised  Code  applicable  to  actions  for  partition, 

of  the  Revised  Code  applicable  to  actions  for  waste, 

of  the  Revised  Code  applicable  to  actions  in  arrest  and 

trial, 
of  the  Revised  Code  applicable  to  Attachment, 
respecting  executors, 

PUBLICATION  to  be  made  of  warrant  of  attachment,    . 
of  notices,  time  of,  how  computed, 

PUBLIC  OFFICES,  action  against  for  trespass, 

RAILROADS,  &c,  not  barred  by  limitations 
RATES  of  damages,  where  damages  recoverable, 
RATIFICATION  of  this  act, 

of  Statutes  composing  this  Code, 
RECEIVERS,  Judge  may  appoint, 
RECORDS  to  be  kept  by  Superior  Court  Clerk, 

examined  by  Solicitor, 
REFERENCE  may  be  compulsorily  ordered  when, 
REFEREES,  trial  by, 

how  chosen, 

who  may  be, 

fees  of, 

powers  of, 
REFUSAL  to  testify,  effect  of, 
RELIEF,  action  for, 

not  otherwise  provided  for, 

in  case  of  mistake, 

to  be  awarded  to  the  plaintiff, 
RELATOR,  when  to  be  joined  as  plaintiff, 

assumption  of  office  by, 
REMEDIES,  provisionals  in  civil  actions, 

provisional, 

how  divided, 

not  merged, 
REPLY,  demurrer  to  answer, 
REPORT  of  referee, 

when  allowed, 
REGULATIONS  respecting  existing  suits, 
RESIGNATION  of  Justice  of  the  Peace, 
REGISTER  OF  DEEDS,  fees  of 

RESTITUTION, 

RESTITUTION, 

RULE  of  construction  of  laws, 

RULES  and  practice  inconsistent  with  this  act  abrogated, 


120 

bi.r, 

143 

382 

144 

384 

189 

511 

190 

516 

172 

70 

198 

136 

359 

16 

35 

14 

29 

92 

250 

25 

64 

211 

575 

102 

270 

53 

143 

54 

147 

89 

245 

89 

90 

247 

90 

247 

110 

384 

129 

337 

16 

34 

17 

37 

50 

132 

92 

249 

140 

368 

141 

370 

55 

78 

1 

1 

2 

7 

41 

105 

91 

247 

109 

282 

148 

197 

548 

205 

566 

119 

314 

196 

544 

145 

391 

146 

393 

INDEX.  245 


SEALED  INSTRUMENT,  action  on,  against  principal, 
SECRETARY  of  State  to  furnish  books, 

of  State  fees  on  returns  to, 
SECURITY  upon  injunction,  damages, 

to  suspend  business  of  corporation, 

on  obtaining  warrant, 

must  be  given  on  documents  or  personal  property, 

when  judgment  is  to  deliver  real  propeity, 

being  given,  proceedings  stayed, 

to  be  approved  and  to  justify, 

must  be  given  or  deposit  made  on  appeal,  unless  waived, 

to  stay  execution  on  judgment  for  money, 
SEIZURE  within  twenty  years,  when  necessary, 
SEPARATE  trials, 
SERVICE,  when  complete, 

proof  of, 

proof  of,  by  certificate  of  sheriff, 

proof  of,  in  case  of  publication,  affidavit  of, 

proof  of,  admission  of  defendant, 

by  mail, 

by  mail, 
SEVEN  YEARS,  what  actions  must  be  brought  within, 
SHERIFF— affidavit  and  order  delivered  to, 

deposit  with  the  sheriff, 

when  liable  as  bail, 

proceedings  on  judgment  against, 

liable  to  bail, 

requisition  to,  to  take  and  deliver  the  property, 

bond  to,  an  attachment, 

when  to  return  warrant  with  his  proceedings, 

fees  of, 

duties  of, 

penalty  on,  for  failing  to  return, 

fees  of, 
SIX  YEARS,  what  actions  must  be  brought  within, 
SPECIAL  proceedings,  definition  of, 

and  general  verdict  defined, 

findings  with  general  verdict,  former  to  control, 
STATE,  when  it  will  not  sue  for  real  property, 

thirty  years  possession  bar  to  suit, 

twenty-one  years  possession  nnder  colorable  title  bar  to 
suit, 

claimants  under,  also  barred, 

claims  against, 

claims  against,  manner  of  prosecuting, 
STATUTE,  limitation  of  action, 


AGE. 

SEC. 

15 

31 

54 

145 

199 

557 

68 

192 

C8 

194 

72 

202 

116 

305 

117 

307 

117 

308. 

118 

310 

115 

303 

115 

304 

12 

22 

85 

230 

35 

88 

35 

89 

35 

89 

35 

89 

8(5 

89 

134 

350 

135 

351 

15 

32 

57 

154 

61 

167 

61 

171 

62 

172 

62 

173 

63 

178 

76 

211 

77 

214 

110 

284 

134 

354 

199 

557 

205 

567 

15 

33 

2 

8 

85 

232 

86 

234 

11 

18 

11 

18 

11 

18 

11 

19 

152 

415 

152 

416 

16 

34 

24G 


INDEX. 


STATUTES,  how  to  be  pleaded, 
STATUTORY  provisions,  inconsistent,  repealed, 
STAY  by  injunction, 

by  statute, 
SLANDER,  action  for, 

and  libel  how  stated  in  complaint, 

and  libel  actions  in  such  cases, 
SOLICITOR  to  examine  records, 

fees  of, 

when  to  receive  fees — salary, 

fees — for  what, 
SUBMITTING  a  controversy  without  action, 
SUBSEQUENT  pleadings, 
SUBPOENAS  for  witnesses, 
SUMMONS,  by  whom  issued, 

form  of, 

date  of, 

what  to  contain, 

number  of  days  to  run, 

return  of, 

copy  of  complaint  to  be  served  with, 

manner  of  service, 

manner  of  service  on  a  corporation, 

manner  of  service  on  infant  under  14, 

manner  of  service  on  defendant  of  unsound  mind, 

manner  of  service  by  publication, 

form  of,  when  defendant  a  foreign  corporation, 

form  of,  when  defendant  a  resident  of  the  State  but  absent 
therefrom, 

form  of,  when  defendant  not  a  resident  but  has  property, 

form  of,  when  subject  is  real  or  personal  property, 

form  of,  in  action  for  divorce, 

manner  and  effect  of  publication, 

when  service  complete, 

proof  of  service, 

form  of, 

to  be  accompanied  by  affidavit  of  amount  due, 

in  Justices  Courts, 

in  Justices  Courts,  by  whom  issued, 

service  and  return  of, 
SUPERIOR  COURT,  meaning  of  term  in  Code, 

cause  transferred  to,  by  Probate  Judge, 

Clerk,  fees  of, 
SUPERIOR  COURTS,  civil  jurisdiction  of, 

terms  of, 

duration  of  Terms, 

terms  of  First  District, 


PAGE. 

B  EC 

46 

123 

146 

392 

19 

46 

19 

46 

17 

36 

47 

124 

47 

125 

54 

147 

200 

200 

563 

201 

564 

120 

215 

122 

323 

133 

349 

28 

71 

29 

73 

29 

73 

29. 

74 

29 

74 

29 

75 

30 

76 

32 

82 

32 

82 

32 

82 

32 

82 

32 

82 

33 

83 

33 

83 

33 

83 

33 

83 

33 

83 

33 

84 

35 

86 

35 

89 

121 

320 

122 

321 

181 

495 

181 

496 

181 

497 

3 

9 

106 

447 

201 

565 

4 

10 

4 

11 

4 

11 

1 

14 

INDEX. 


247 


SUPERIOR  COURT,  terms  of  Second  District, 

terms  of  Third  District, 

terms  of  Fourth  District, 

terms  of  Fifth  District, 

terms  of  Sixth  District, 

terms  of  Seventh  District, 

terms  of  Eighth  District, 

terms  of  Ninth  District, 

terms  of  Tenth  District, 

terms  of  Eleventh  District, 

terms  of  Twelfth  District, 
SUPREME  COURT,  jurisdiction  of, 

cases,  how  taken  t", 
SUITS,  not  transferred,  to  abate, 

transferred,  how  proceeded  with, 
SURETIES,  exceptions  to, 

justification  of  defendant's 

.  qualifications  and  justifications, 

actions  against, 

TENANT,  possession  by,  possession  of  landlord, 
TESTIMONY  of  party  may  be  rebutted, 

no'  responsive  to  the  inquiries, 
TIME  of  commencing  action, 

of  war  not  counted, 

of  stay  not  counted, 

pending  probate  of  will  not  counted, 

how  computed, 

double  when  served  by  mail, 

for  publication  of  notice,  how  computed, 
TITLE,  when  persons  having,  must  sue, 

answer  to, 
THREE  YEARS,  actions  to  be  within, 
THIRTY  YEARS  possession  good  against  the  State, 
TRANSFER  and  appeal  of  issues  of  fact, 

and  appeal  no  bond  required, 
TRESPASS,  action  for  limitation  of 

of  office, 
TRIAL,  change  of  place  of 

change  of  place  of,  by  order  of  court, 

change  of  place  of,  by  consent  of  parties, 

mode  of,  on  issue, 

defined, 

may  be  postponed  by  clerk,  when, 

may  be  postponed  by  Judge  in  term,  when 

separate, 

new,  on  Judges'  minutes, 

by  the  Court, 


AGE. 

SEC. 

4 

11 

5- 

11 

0 

11 

6 

11 

6 

11 

6 

11 

7 

11 

7 

11 

8 

11 

8 

11 

8 

11 

151 

413 

152 

414 

148 

148 

401 

64 

180 

65 

182 

65 

183 

16 

8f 

13 

26 

127 

336 

128 

338 

10 

19 

44 

19 

46 

19 

47 

132 

348 

134 

352 

136 

359 

12 

20 

182 

500 

16 

34 

11 

18 

179 

180 

491 

16 

34 

16 

35 

27 

69 

27 

69 

27 

69 

82 

82 

223 

83 

227 

84 

228 

8£ 

2:!0 

S(i 

236 

88 

248 


INDEX. 


TRIAL,  by  jury,  Low  waived, 

by  the  court,  judgment  bow  to  be  given, 

by  referees, 

mode  of, 

for  felony  in  progress  at  close  of  term,  term  to  be  prolonged 

new,  appeal  in  Justices'  Courts, 
TWENTY-ONE  TOARS  possession  under  colorable  title,    ' 
TWENTY-ONE  YEARS,  possession  under  colorable  title, 

years  seizure  within,  when  necessary, 

years  adverse  possession  bars  suit, 

years  adverse  possession  give  title, 

UNDERTAKINGS  may  be  in  one  instrument  or  several, 
must  be  filed, 
where  to  be  filed, 
same,  to  be  given, 

VARIANCE,  material  in  pleading,  '      *3 

immeterial  in  pleading, 
VERDICT,  general  and  special  defined, 

general  and  special  where  jury-nnay  render, 

on  special  findings,  former  to  control 

entry  of, 
VOUCHERS, 
WARRANT  of  attachment,  by  whom  granted, 

when  granted  by  Justice  of  the  Peace, 

in  what  case  it  may  be  issued, 

security  on  obtaining, 

to  whom  directed  and  what  to  require, 

in  executing,  mode  of  procedure, 

in  perishable  property,  mode  of  procedure, 

when  sheriff  to  return  with  proceedings  thereon, 
AV1LLS,  probate  of. 

how  entitled  to  probate, 

executor  not  incompetent  as  witness  to, 

production  of,  compelled  by  process, 

made  without  State,  how  proved, 

of  subject  or  citizen  of  another  country, 

of  citizen  of  this  State  proved  elsewhere, 
WILL,  of  testa'tor  to  be  observed, 
WITNESSES  required  to  testify  when, 

of  party  compelled  to  attend, 

husband  and  wife, 
examination  of, 
interest  not  to  exclude  a 
parties  to  actions  may,  except  in  certain  cases, 
mbpeenas  for, 

penalties,  &c,  in  Justice's  Courts, 
■compensations  of, 
WOMAN  married,  may  sue  for  real  property, 


PAGE. 

8E0. 

88 

240 

88 
89 

.^41 

90 

246 

147 

397 

192 

528 

11 

18 

11 

19 

12 

22 

13 

23 

13 

23 

118 

*309 

119 

312 

135. 

358 

195 

542 

48  ' 

'  128  ' 

49 

129 

85 

232 

85 

233 

86 

234 

86 

234 

176 

480 

70 

199 

71 

200 

71 

201    <« 

72 

202 

72 

203 

72 

204 

73 

205 

77 

214 

161 

161 

435 

162 

436 

164 

442 

164 

443 

164 

444 

165 

445 

168 

455 

101 

269 

101 

268 

129 
129 
129 
129 
133 
188 
209 
14 

341 

342 

343     . 
349     ' 
510    * 

